Wills Variation: Will Varied In Favour of Indo-Canadian Daughters

B.C. judge overturns Indo-Canadian farmer’s will

This article was originally posted on the National Post. Written by Cheryl Chan.

 A wills variation claim involving four Indo-Canadian daughters was varied from  $150,000 each to %60 of the estate — the two sons were slated to collect $4.2 million

Nahar and Nihal Litt were farmers from India who came to B.C. and achieved the Canadian dream, building a future for their six children and accumulating a family fortune worth $9 million.

When the couple died in 2016, their will stipulated that their four daughters — Jasbinder Grewal, Mohinder Litt-Grewal, Amarjit Litt, and Inderjit Sidhu — receive $150,000 each, collectively less than seven per cent of the estate, while sons Terry Litt and Kasar Litt receive 93 per cent, or $4.2 million each.

Last week, the will was overturned in B.C. Supreme Court, a case that is notable because of the glaring disparity between the amounts given to the daughters compared to sons, and the overall value of the estate, said Trevor Todd, the plaintiffs’ lawyer.

Nahar and Nihal Litt were farmers from India who came to B.C. and achieved the Canadian dream, building a future for their six children and accumulating a family fortune worth $9 million.

When the couple died in 2016, their will stipulated that their four daughters — Jasbinder Grewal, Mohinder Litt-Grewal, Amarjit Litt, and Inderjit Sidhu — receive $150,000 each, collectively less than seven per cent of the estate, while sons Terry Litt and Kasar Litt receive 93 per cent, or $4.2 million each.

Last week, the will was overturned in B.C. Supreme Court, a case that is notable because of the glaring disparity between the amounts given to the daughters compared to sons, and the overall value of the estate, said Trevor Todd, the plaintiffs’ lawyer.

“All of my sisters and I are happy with the judge’s findings,” said Amar Litt.

She and her sisters challenged the will on the grounds they were discriminated against based on their parents’ traditional Indo-Canadian values that favoured sons over daughters — a belief they argued falls short of the moral standards of Canadian society.

The Litts arrived in B.C. in 1964. At the time, the children ranged in age from three to 14.

Father Nahar worked at a sawmill. The family eventually purchased residential properties and farmland in Vancouver, Richmond and Abbotsford. At the time of the Litts’ deaths, the bulk of their estate came from two properties, the family house in Vancouver and a 73-acre property in Richmond.

The Litt family farm on Cambie Road in Richmond. The property has since been sold. (Submitted photo: Amar Litt) PNG

Throughout their childhood, the sisters felt they were considered less valuable, especially by their mother, because of their gender, court heard during the 15-day trial.

“The sting and the hurt of those memories were apparent as they gave their evidence at trial,” noted Justice Elaine Adair in her reasons for judgment.

“Most of our lives we had not been treated fairly,” said Amar Litt. “My brothers received all the praise because they were boys. We had to fight a lot harder.”

The sons also received “significantly more” gifts and benefits during their parents’ lifetimes than any of the sisters, said the judgement.

All the siblings worked on the farm, but the girls testified they were also responsible for household chores.

With the exception of one brother, the unmarried children were expected to plow their wages back to the farming operations. The exception was Kasar Litt, whose wage was held back even after he was married.

One sister, Inderjit, was working outside the farm, but was expected to make her employment income available to the family business, said the judgment.

The daughters argued their work and wage sacrifice were the “backbone of the farm operations,” it said.

“Throughout our childhood, teen years, and young adult lives, we worked on that farm alongside our brothers,” said Amar Litt. “We helped build our parents’ estate.”

When the elder Litts’ health deteriorated, it was the daughters, particularly the two older sisters, who took care of their parents.

Learning the contents of the will was disheartening, said Amar Litt. “We were anticipating that my parents would recognize us at this point, but it ended up we weren’t. It was very difficult and emotionally painful.”

Their brother Terry, who was executor of the will, testified that between 2006 and 2012, he tried to convince his parents to change the will. His father was open to the idea, but his mother was not.

Both brothers agreed their parents failed to meet their “moral obligations” to their daughters, but the parties could not agree on how the estate was to be divided, despite mediation.

The judge ruled an increase to the daughters’ share was warranted based on factors including the gifts and benefits the sons had received, the influence of outdated cultural values on the parents, and the daughters’ contribution to their parents’ care.

Adair ruled that the daughters be granted $1.35 million and the sons $1.8 million each.

“The judge had to take into consideration what the will said,” said Litt. “We are still able to honour our parents wishes that the sons get more, but there’s more fairness now.”

The B.C. Wills Variation Act allows judges to change a will to make sure it is “adequate, just and equitable” to the testator’s spouse and children.

B.C. is the only province in Canada to have this legislation, adopting it from New Zealand in 1920.

It can be a controversial legislation, said Todd, but argues it doesn’t mean British Columbians don’t have a say in what happens to their assets upon death. Parents can still disinherit a child, for example, but there has to be valid and rational reasons for doing so.

Todd said that over the course of his 45-year practice, he has had met many Indo-Canadian women consult with him over wills they believe to be unfair. But none proceeded with a claim.

“The social pressures, family pressures, and pressure from their community at large prevented some of them from going ahead,” he said.

Contesting her parents’ will was not easy, said Amar Litt, especially for her two older sisters.

“We did it because it was the right thing to do,” she said, adding she hopes their case will “inspire other women in the same situation to stand up for themselves.”

BC Estate Lawyer-Wills Variation: Asian Values are No Excuse for Disinheriting Daughters

Asian Values are No Excuse for Disinheriting Daughters

This article was originally published by the South China Morning Post. Written by Ian Young.

Canadian court rules, Asian values are no excuse for disinheriting daughters, as Vancouver sisters win multimillion-dollar case.

A British Columbia law, unique in Canada, forces parents’ wills to fairly provide for all non-dependent adult children, regardless of cultural bias towards sons The rules are highlighted by a recent victory for four sisters, who were each originally left with just 1.7 per cent of their parents’ US$6.8 million estate.

Asian values are no excuse for disinheriting daughters, Canadian court rules, as Vancouver sisters win multimillion-dollar case A British Columbia law, unique in Canada, forces parents’ wills to fairly provide for all non-dependent adult children, regardless of cultural bias towards sons The rules are highlighted by a recent victory for four sisters, who were each originally left with just 1.7 per cent of their parents’ US$6.8 million estate.


See Litt estate blogs

Read full article…

Wills Variation: Contesting a Will

Can You Successfully Contest A Will?

By The Jon McComb Show.

When their parents passed away, their six children stood to benefit from assets worth over $9-million dollars. However, Nahar and Nihal Litt willed 93% of that wealth to their two sons, leaving their four daughters with $1-hundred and 50-thousand dollars each.  Wills that seem unfair are not uncommon, however this one is gaining media attention for a few reasons.

Trevor Todd was interviewed. Listen to the full episode here.

Wills Variation: Four Daughters Win Against Sons

4 B.C. sisters victorious in court after parents left them tiny share of M estate

Written by Bethany Lindsay | Published on CBC.ca

Judge changes wills after  Litt parents left 93% of their estate to 2 sons and $150,000 to each of four daughters.

When they died three years ago, Nahar and Nihal Litt left behind an estate valued at more than $9 million. They willed 93 per cent of that to their two sons, leaving their four daughters to split what was left.

That’s despite the fact that the daughters, now in their 50s and 60s, took on most of the work of caring for their aging parents in the years before they died, according to a B.C. Supreme Court judgment. They also helped build their parents’ fortune, working on family-owned farms beginning when they were children.

And so the sisters decided to contest their parents’ will in court, arguing that their parents discriminated against them based on outdated traditional values, the judgment says.


This Richmond farm helped build the Litt family’s fortune. (Farms in B.C.)

When they died three years ago, Nahar and Nihal Litt left behind an estate valued at more than $9 million. They willed 93 per cent of that to their two sons, leaving their four daughters to split what was left.

That’s despite the fact that the daughters, now in their 50s and 60s, took on most of the work of caring for their aging parents in the years before they died, according to a B.C. Supreme Court judgment. They also helped build their parents’ fortune, working on family-owned farms beginning when they were children.

And so the sisters decided to contest their parents’ will in court, arguing that their parents discriminated against them based on outdated traditional values, the judgment says.

“One of the reasons that they wanted to pursue the claim was not just out of self-interest, but so other South Asian women in the same position would also have the courage to do so,” their lawyer, Trevor Todd, told CBC News.

This week, Justice Elaine Adair agreed to redistribute the Litt estate, granting about $1.35 million to each of the sisters: Jasbinder Kaur Grewal, Mohinder Kaur Litt-Grewal, Amarjit Kaur Gottenbos and Inderjit Kaur Sidhu

That adds up to 60 per cent of the family fortune, much higher than the $150,000 each they were initially promised.

Their two brothers, Terry Mukhtiar Singh Litt and Kasar Singh Litt, will split the remaining 40 per cent, or about $1.8 million each.

The brothers both agreed that their parents had failed to meet their “moral obligations” to their daughters, though they argued in court for larger inheritances for themselves. Terry Litt testified that he had tried to convince his mother and father that the wills were unfair, but he was unable to persuade them to make changes.

‘The hurts were deep’

Adair’s judgment lays out more than five decades of history in an immigrant family whose frugal lifestyle and hard work helped build a multi-million-dollar legacy. It reveals a network of complicated family relationships touched by resentment that led one daughter to become estranged from her parents for 20 years.

The Litts arrived in B.C. from India in 1964, when their children were between the ages of three and 14 years old, according to the judgment.

Dad Nahar found a job at a sawmill, and the family gradually began acquiring real estate, including a number of farms.

“As soon as they were old enough, the siblings were expected to work during the summers alongside their mother, picking fruit and vegetable crops,” Adair wrote.

The Litts owned a number of farms in Richmond and the Fraser Valley over the years. (Farms in B.C.)

The difference, according to the daughters, is that they were expected to take care of household chores, while their brothers were not. They testified that, as girls, they were treated as less valuable.

“There is little doubt that Nihal, over her lifetime and without justification, treated her daughters very cruelly. Jasbinder and Mohinder, the two oldest, were particular targets,” Adair wrote.

“The hurts were deep and are still keenly felt.”

Despite that cruelty, the two eldest daughters took on most of the work caring for their ailing parents in the years before they both died in the span of two months in early 2016.

‘They consider it a victory’

Today, the siblings all have their own families and are financially independent. Even before they receive their inheritance, some of them have assets valued in the millions of dollars.

But Adair wrote that the parents’ wills were not adequate to support their daughters.

B.C.’s Wills, Estates and Succession Act gives judges wide leeway to make drastic changes to a will to make sure there’s a “just and equitable” distribution to someone’s surviving spouse and children. At the same time, they’re expected to consider the “testamentary autonomy” of the dead person — in other words, a person’s right to decide who gets their money.

Todd said he believes the judge did a good job of balancing those two concerns.

“The clients are very happy with the result. They consider it a victory,” he sai


Publication Bans

Publication Bans | Disinherited Vancouver Estate Litigation

Toronto Star Newspapers Ltd v Sherman Estate  2018 ONSC 4706 involved the sensational murder of two wealthy Torontonians where the courts weighed the deleterious effects of applying publication bans to protect files. The court concluded that any deleterious effect of a publication ban was substantially outweighed by the salutary effects on rights and interests of victims, beneficiaries and trustees of the estate.

The court ordered that the estate files be sealed for two years.

Journalists had sought access to the estate and investigatory files but were advised that the files were not available for viewing, so the newspaper brought application seeking variation or termination of protective orders and full and ceiling of the court files. Those applications were dismissed for a period of two years.

The case reviewed the principles applicable to win the courts will grant confidentiality orders:

1) The principle of open courts is inextricably tied to the rights guaranteed by section 2 of the Charter of Rights.- Sierra Club of Canada v. Canada (2002) 2 SCR 522;

2) The fundamental question for a court to consider in an application for a publication ban or confidentiality is whether, in the circumstances, the right to freedom of expression should be compromised and the analytical approach to the problem must be tailored to the specific rights and interest engaged in the case- Sierra Club at paragraphs 37 – 38;

3) The basic purpose of the court’s approaches to ensure that the judicial discretion to deny public access is exercised in accordance with charter principles;

4) A confidentiality order (publication ban) should only be granted when such an order 1) is necessary in order to prevent a serious risk to an important interest because reasonable alternative measures will not prevent the risk, and 2) the salutary effects of the confidentiality order outweighs it’s deleterious effects, including the effects and the right to free expression in the public interest in open and accessible court proceedings;

5) Stated differently public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. Toronto Star Newspapers LTD v Ontario (2005) 2 SCR 188;

6) These principles apply to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings, there being no fundamental distinction to be drawn between seeming orders, publication bans rather confidentiality orders made in the context of court proceedings, both criminal and civil;

7) The test is not whether or confidentiality should be issued in order to err on the side of caution or out of an abundance of caution- the test is whether it is necessary to do so R. v Kossyrine & Vorobiov 2011 ONSC 6081

The court concluded that the burden to be satisfied by the party seeking a confidentiality order is a high one in the court must guard against any tendency to treat such applications as routine.

The open court principle is a fundamental element necessary to maintain and nourish public confidence in our courts and their integrity. Loss of that confidence when undermined the public’s willingness to accept the legitimacy of the mandate of judges to dispense justice on their behalf. From there lies a slippery slope to the sort of society no Canadian wishes to bring about.

Interview: Ask & Answered With R. Trevor Todd

Interview: Ask & Answered With R. Trevor Todd

Trevor Todd was recently interviewed for an article in the Verdict (issue 155). View the original article here.


(1) the Verdict: With regard to both law clients and the legal system in general, what does the word justice mean to you?

Trevor: Justice. As an estate litigator I view the concept of justice through the courts of equity that my disinherited clients actually deserve, merit, and are entitled to share in the estate that has been created by typically their parents. Typically my disinherited clients are victims from a dysfunctional family where they were badly treated. I am very grateful that British Columbia has the provisions of the wills variation act ( now section 60 WESA) enshrined so that there is a moral obligation on behalf of parents to provide for their children and a legal obligation to provide for their infant children. The Canadian legal system certainly is not perfect in providing justice, but I venture to say, it is probably one of, if not the very best legal systems in the world.


(2) What were among the main reasons you chose to pursue a career in the legal profession?

The main reason I pursued a career in the legal profession is that my father had the aptitude of a lawyer but did not have the opportunity to attend law school. I remember as a child wanting to be a lawyer and recall completing my application to law school with the simple words “I have always wanted to be a lawyer”.


(3) When it comes to the legal professional, what is just as important to you now as it was 43 years ago at the start of your career as a lawyer?

I like to think that anyone who pursues a career in law is first and foremost guided by the overall principle of trying to help people with their legal problems. Throughout my career I have always obtained my greatest satisfaction in bringing a case to a satisfactory conclusion, and hopefully having attained the desired goal of my client.


(4) Being asked to represent an individual on a personal legal matter is an honour and a tremendous responsibility. What advice would you impart to new lawyers with respect to how they should approach meeting a potential client for the first time?

My advice to new lawyers with respect to how they should approach meeting a client for the first time is to listen carefully and ask probing questions to ensure that the client has merit to their claim before accepting their retainer. I urge lawyers to learn to say “no” much more than they typically do when it comes to accepting the retainer of every possible client. For example, if the client has previously retained more than two lawyers ( without valid reason such as retirement) , then I urge caution in accepting that potential client as the red light might be that the client is unreasonable. This is particularly the case when accepting contingency fee arrangements as in my view, it is the lawyer that bears most of the risk and not the client.


(5) Your practice has changed over the years, perhaps most notably by the fact that these days your work is exclusively focussed on estate litigation. In which way does your approach to work today differ significantly from your approach during your first 10 or so years in the practice of law?

When I started practicing law in 1974 I had an extremely general practice where in the same day I might do and impaired driving, a commercial lease and an uncontested divorce. In retrospect, I believe that most lawyers then did not do a particularly good job if they maintained such a practice, which I believe most did. Approximately 25 years ago I took a number of courses on focusing your practice and realized that specialization is not only what the public wants, but leads to a far more financially successful less stressful practice, as well as greater peer recognition. Coincidentally, at about the same time I had a significant estate litigation trial, which made the front page of the province and Vancouver Sun. It was an epiphany for me in terms of what I wished to do exclusively in my practice.


(6) What are among the most difficult aspects of your workweek, be it logistics or otherwise (e.g. time management, commuting, scheduling)?

I no longer have any difficult aspects in my work week as many years ago I developed the concept that I would strictly control my practice as opposed to allowing the practice to control me. I have stringently restricted the number of cases that I take each year to a very manageable number and only take cases that I think are of merit, interest and financial reward. I have noted that most lawyers are victims of overwork with too much stress and non-appreciative clients- I consider that their practices are largely examples of “the tail wagging the dog”.


(7) What are among the most challenging aspects of the cases you take on regularly?

The most challenging aspects of the cases that I regularly take are that they are often referred to me by other lawyers as being difficult and requiring expertise. I have particularly enjoyed the cases where it has been necessary to try “pushing the plaintiff’s envelope” by trying typically equitable remedies to overcome difficult fact situations.


(8) “Money Matters” is the theme of this edition of the Verdict. Money can be – and nearly always is – a challenging topic for anyone, regardless if we’re talking personal or professional. You are deep into a career that uniquely fuses personal and professional needs and obligations – with money, assets and family at the heart of it all. The Wills, Estates and Succession Act (WESA) is now eight years old (Royal Assent on October 29, 2009), has it been a great eight for the people of BC?Oversimplification aside, are money matters better (closer to just) for citizens who require legal assistance after the death of a loved one?

WESA came into effect on March 31, 2014 and comprised a great number of changes from previous estate statutes. Initially the provisions of the wills variation act that allowed an adult independent child to contest a will were not to be included in the new legislation. I (amongst others) strongly lobbied against this and spoke to a number of bar associations and wrote a number of articles to the effect that this provision should be kept in the new legislation. Atty. Gen. Oppal in his wisdom, fought the cabinet against this change, and prevailed. His rationalization amongst others was that many Southeast Asian women would be disinherited and would have no legal remedy. This is a very significant factor in that British Columbia is the only province in Canada, and one of the few places in the world other than New Zealand that allows an adult independent child to contest a will on the basis that they were not adequately provided for by their parents. The other significant change of WESA is the extreme relaxation of the rules relating to the proper execution of a will. One of the first cases in this regard was a court allowing a suicide note (unwitnessed of course) to be declared a valid will under the curative provisions of the act.


(9) Many of today’s legal professionals contend that law school did not prepare them for some of the biggest or most important aspects of managing a law practice. What is one practical everyday thing you learned from scratch, after earning your law degree?

The biggest complaint I have with respect to law school is that while they teach the student to analyze case law quite well, there was, and I believe still is, no training whatsoever with respect to the management of a law firm. Most law professors have never practiced law. Probably the biggest change that I have noted in the profession is that for approximately the first 20 years of my practice law was considered a “noble profession “whereas the reality is that it is increasingly “big business” on an worldwide basis. What I quickly learned after entering practice is that each lawyer is expected to have business skills, including marketing, and to be productive in the monetary sense. Many of the brightest students weren’t necessarily good at these skills. I have learned that personality and practical common sense are usually more valuable in the practice of law than high intellect.


(10) If you chose another career path, what would it likely have been, and which careers are among the ones you would consider nicely suitable to your skills and aspirations?

With respect to alternate career paths other than law, most of my classmates had a political science undergraduate degree. I recall writing an aptitude test just prior to entering law school and my main aptitude was that of the social sciences professor. In latter years, I have realized that I would probably have pursued a Masters in business administration If I had been unable to be accepted in law school. One of the things I have liked about law as a career, that equally applies to an MBA degree is the number of diverse avenues that can be followed if one is so inclined.


(11) What do you consider to be among the greatest traditions of life as a lawyer?

I consider one of the greatest traditions of life as a lawyer is the camaraderie of the profession throughout the world. I travel a great deal and have noted that no matter where I am, there is much in common with practitioners in the foreign country.


(12) You’ve been a member of TLABC from the early days of this association. You served a year as TLABC’s president and you were a dedicated member of the board of governors for well more than a decade. Aided by your experience to date and the benefit of hindsight, what do you regard as a significant way in which things have changed for lawyers who chose to join this professional association? Put another way, generally speaking, are professional associations and memberships more relevant than ever or are most of today’s professionals inclined to keep to themselves with regard to their practice issues?

I can still recall attending a TLABC seminar in 1982, and thinking that was by far the best, most practical seminar I had ever attended. The American attorneys who spoke were high-powered and inspirational. The course was so different and more practical than the CLE courses that I had taken. I immediately joined the fledgling association and got on the executive. Our first meeting was in Ian Sisset’s kitchen as TLABC did not have an office until my presidency in 1987. I have been writing an estate column for the Verdict now for approximately 22 years. I have urged a great number of young lawyers to get involved with TLABC and consider it to be one of the very best professional legal associations. With the decline in mentoring over the years I think it is more important than ever for lawyers, and in particular young lawyers to join such professional associations.


(13) Whether far back in world history or in modern times, who are some of the lawyers and laypeople that come to mind when you think of people you admire, and what do you find most admirable about them?

Lawyers and laymen I admire in world history are Margaret Thatcher and Mikhail Gorbachev for their strong individual beliefs that were contrary to the prevailing thought of their time and circumstances and who largely helped to end the Cold war that persisted throughout most of my life.


(14) If you could have been counsel on any case in world history – in any field of law – which case would it have been, and what is it that draws you to it? Additionally, which lawyer or lawyers in history do you think you would have enjoyed most working against or alongside?

If I had been counsel on any case in world history, I would choose being a prosecutor at the Nuremberg war crimes trials. I greatly admire the prosecutors who have participated in trials against genocide. Such work appeals to both my keen interest in world history as well as huma rights justice.


(15) Featuring law as a central theme or as a compelling backdrop to a story, which books or films are at the top of your list of favourites?

I have never been attracted to television portrayals of the practice of law as Perry Mason and LA Law gave very false impressions to the general public as to what the profession is truly like. On the other hand I admit to being a John Grisham addict and have read every one of his books, including his few non lawyer ones.


(16) Which mantra, quotation or expression do you find particularly inspirational, one that is powerful enough to guide you through the toughest of days?

The quotation that helped me the most in the development of my estate litigation practice was back when I had one case and was wondering when the next one might come in the door. It was the very early 1990s, and when I bemoaned the fact of that I had grave concerns about making a success of it, a friend stated” Rome wasn’t built in a day”. That quote somehow caused me to realize that perseverance in the pursuit of something that you really want will invariably prevail.


(17) Trevor Todd – if all of your arguments were made and your law books were closed forever, where would you be living and what would your life be like? Alternatively, describe an ideal non-work day in which you are living life exclusively on your terms.

At this time I cannot come to grips with what it would be like to not practice law anymore. Many of my contemporaries have retired or are thinking about it. My attitude remains that I will do it until “I drop,” If I did have to describe a non-workday in which I was living exclusively on my terms, it would probably involve adhering to the principles set out in the book “ The Four Hour workweek” and realizing that I could be living in a foreign country in the lap of luxury, working only as and when I wanted, and enjoying life on my own terms.


(18) At this stage of your career – with the sum and strength of 43 years of experience as a lawyer – what can you, legal professional, say for certain about law?

After 43 years of practice, I can state that there will always be a need for lawyers in our society, but as a profession, It is threatened not only by an overabundance of lawyers, but technology such as artificial intelligence. The lawyer of the future will need to be highly specialized and able to adapt to radically changing social situations.


(19) Today, with the benefit of your life experiences to date, what can you – Trevor Todd – say for certain about life?

With respect to life experiences, I think the quote from Forest Gump that “life is like a box of chocolates- you never know what you’re going to get” is most apt. As far as certainty goes it is limited to death and taxes.

Ian Mulgrew: As if Death Weren’t Bad Enough — Fraudulent Wills

Ian Mulgrew: As if Death Weren't Bad Enough — Fraudulent Wills

Originally published in The Vancouver Sun May 4, 2017

Written by Ian Mulgrew

The B.C. inheritance-and-estate law brought in two years ago has increased the risk of forged and fraudulent wills, says a lawyer involved in the debate about its creation.

Trevor Todd, who runs disinherited.com, said the situation is worrying given that in his 40-year practice he previously saw only one forged will — in the late-1970s.

That case involved a nightclub doorman and his legal-secretary girlfriend taking advantage of the chronically drunk bar owner with a will that left everything to the bouncer. The club owner’s widow hired a handwriting expert and the case was settled out-of-court when the will was unveiled as a fake.

The old rules required that a will be in writing, signed by the testator and two witnesses, all in the presence of each other, and neither of whom nor their spouses could inherit as a beneficiary.

(The doorman used two bar flies as witnesses — the girlfriend having alerted him to the perils of signing the phoney document.)

Most forged-wills cases involve handwritten documents, known as holographs, putatively signed by the deceased with no witnesses.

Several decisions since the Wills, Estates and Succession Act (WESA) came into effect March 31, 2014, however, have allowed wills that previously would have been ruled invalid to be probated despite irregularities such as the lack of witnesses.

In one of the first post-WESA cases, (Re the Estate of Woolrich, V140043, unreported, Jan. 21, 2015), the B.C. Supreme Court found a suicide note to be a valid will.

In Re Smith Estate 2016 BCSC 350, the court granted probate to three clipped and stapled-together documents — two handwritten and the other an original funeral-arrangements brochure, all unsigned and unwitnessed.

In Re Yaremkewich Estate 2015 BCSC 1124, the witnesses signed a blank template that didn’t have attached the lists of bequests found with the will after death.

Also, they couldn’t recall if the deceased had signed the will template at the same time as they did. The judge still approved the will, including the lists of bequests.

“To date the courts have not set any limit on what type of documentation is necessary to prove a will-maker’s true intentions with respect to his or her last will,” Todd said. “It is possible, for example, that an email message might be admitted to probate as a will. Such a thought immediately conjures up the prospect of an increase in faked wills.”

The previous legislation took a very strict approach to wills, Todd explained, so any deviation caused a will to be deemed wholly or partly invalid.

For policy reasons, the government decided far greater court discretion was required to “cure” previously “defective” wills.

Passed in 2009, WESA included provisions that allowed probate as long as the intention of the testator was clear.

At the time, litigators including Todd, predicted more, not fewer lawsuits with the adoption of a significantly different conception of what could be considered a valid will.

With the public now increasingly preparing their own wills, Todd maintained, the self-help process has exacerbated the problem providing even greater opportunity for deathbed legerdemain.

“As the public increasingly prepare their own wills, all without the ‘screen’ of a lawyer testing for capacity and undue influence, it appears inevitable that there will be more forged or faked testamentary documents,” he said.

Combating a counterfeit will, he added, is difficult because bringing a charge of forgery is tantamount to alleging fraud, requires expensive handwriting experts and, if unproven, results in a heavy, special-costs award against the accuser.

“Handwriting experts require 20 to 30 handwritten signatures of the deceased, preferably originals only, which they analyze through microscopes,” he said. “Their job is often complicated by the effect of tremors, arthritis or other related afflictions that a frail or elderly will-maker may have.”

And lawyer-prepared wills aren’t a palatable solution.

“There is a great price barrier as to what people will pay professionals to prepare wills, given the availability of will kits and such on the Internet,” Todd noted.

Undue Influence: Shifts in Burden of Proof Means More Plaintiffs Win

Undue influence is nearly always done in secrecy. It’s behind closed doors. There’s never many witnesses. It’s the things that are said like, I’m going to put you in a care home if you don’t leave anything to me. There are no witnesses but it scares the hell out of the vulnerable person. They lose their freedom of thought and gradually, they lose their independency and they become very dependent on that caregiver and make their will accordingly.

It seems to me rather that one speaks of influence, one is really referring to the ability of one person to nominate the will of another whether it’s through manipulation or coercion or outright or subtle abuse of authority. Basically, they conclude with to dominate the will of another simply means to exercise a persuasive influence over him or her. You see, it’s not coercion now. It’s just persuasive influence. That’s a huge change.

Proving coercion is almost impossible. You have to have literally a gun to the head and witnesses witnessing that. But in these positions of domination and vulnerability, it’s just persuasive influence. The ability to exercise such influence may arise from the relationship of trust and confidence that may arise from other relationships as well. The point is that there is nothing per reprehensible about persons in a relationship of trust and confidence exerting influence, even undue influence over their beneficiaries. It depends on their motivation and objective to which they seek to achieve. And again, that’s an evidentiary matter but with the presumption, it’s a huge factor and a leg up. I predict there’s going to be more undue influence claims and that more plaintiffs are finally going to win.

Understanding Testamentary Documents

A testamentary document is like a will because the will is the most common form of that type of document. A will is a document that has its vigor and effect upon a death. In other words, a will is an invalid document until a death. It’s an important document but it’s not the type of document that you can take to the bank and borrow against until the actual death occurs and you can prove that you are a beneficiary.

Now, what’s the significance? Some documents look testamentary but may not be. While other documents do not necessarily look testamentary but might be. The legal test is whether the document requires its vigor and effect to be a death in order for the document to come into force and effect. The significance is is that if it is a testamentary document, then it must be signed in accordance with the Wills Act which requires two witnesses and the presence of the person signing the document all in the presence of each other. If it’s not validly witnessed in the court in such as that, then the document might not be valid. The article shows cases where the document is testamentary and cases where the document is found not to be testamentary.

How to Keep Wills Variation Out of BC Court

This video is about how to keep wills variation out of court which is basically what most testators want to do at the end of the day. The video and article is a very in-depth review of what the requirements are with respect to executing valid wills and dealing with various wills issues that arise in a state litigation such as ambiguities or missing pages or all sorts of problems that can arise. As I said, a very detailed examination of very, very many wills issues that can arise in a state litigation.