Disappointed Beneficiaries? Sue the Lawyer

This video is about suing a lawyer for not properly preparing a will in a timely manner or in a proper manner so that there is, at the end of the day, what are known as a disappointed beneficiaries. This is someone who expected to inherit but because of the delay or negligence on the part of the solicitor who is instructed to prepare the will, the will was never properly executed and thus the intended beneficiary did not inherit.

These people are very disappointed and when they seek legal advice, a lawyer such as myself will advise them that the courts have held for approximately 30 years now, that the sole reason that a lawyer is hired to retain to prepare a will is so that the deceased testator has provided for his intended beneficiaries. If the lawyer perhaps goes on holidays or takes an untimely delay in preparing the will, and the deceased were to die before the will was signed, then the lawyer might very well be negligent and liable to the disappointed beneficiaries.

Dysfunctional Families and Becoming Disinherited

This video is about dysfunctional families. Chances are, if you’re watching this video or you have read the article called Dysfunctional Families on our website, then you’ll know a lot about this topic. However, many people that come in our office actually are absolutely amazed how accurate this article is. They ask me, “How did you know my family so well?” Well, we don’t. But we do have a lot of clients who have been from dysfunctional families and they end up in our office as a result of it. Often, they’re victims.

There’s any number of reasons for dysfunctional families and it can be as varied as alcohol and drug abuse to physical violence to sometimes sexual assault to absentee parents to any number of reasons, strict family upbringings like religious fundamentalism. There’s another one. Any number of reasons can find yourself disinherited and in our office. I’m sure that we understand where you’re coming from and that we understand that often you are victims of such abuse. In fact, I’ve read that over one out of three people expect to be disinherited by their parents. I think that’s actually on the low side.

Delusions and Testamentary Capacity – 4 Factors to Consider

This video is about delusions and testamentary capacity required to make a will. The leading decision of testamentary capacity is Banks versus Goodfellow from 1857 which held that in order to have valid capacity, a person must 1) know what a will is; 2) know what assets he or she has and their value; 3) know who are not to be considering in leaving a bequest; and 4) be free of delusions that affect their ability to decide all of the above.

A person may be crazy but still have mental capacity. In fact, in the leading case of Banks versus Goodfellow, he thought his niece was the devil. On the other hand, he provided for his niece and she was his only next of kin and caregiver and the courts ultimately held that the will was valid.

I’ve had many cases involving delusions and it is difficult to tell when a person has a delusion when one first meets them. What will be obvious in time is that they hold a fixed and very rigid belief that most people would consider to be not be true. The person may in fact be psychotic.

Some of the different types of delusions are grandiose, a person may think they’re a megalomaniac or erotomania, they may feel that they’re in love with a very special public person and that that public person loves them as well. There can be delusions of persecution and delusions of your body doesn’t function at all. You’ve considered yourself for example paralyzed and any combination of those. But again, it’s difficult for the solicitor taking instructions from a person with aversions to actually realize that they may not have proper capacity to do a will.

What Happens When You Lose Your Will?

What happens when you lose your will? Many people, in fact, do. They might be hoarders or they might be very careful people but they don’t appreciate that that document that they signed many years ago and took home is perhaps the original of a very valid document that only takes effect upon a death. So it’s important to safeguard where the will is kept.

The main reason is that if the will is lost while in your possession and then you die, you are presumed to have revoked that will and that the will no longer exists. This is a rebuttable presumption and the court will be allowed to look at whether you referred to the will, whether you referred to the will to your general nature as to what type of person you were and to any other previous wills that you might have done in an attempt to see if the presumption can be rebutted. The most important thing to remember though is to safeguard your will.

Mental Capacity and Marriage

This video is about capacity to marry. That’s mental capacity. We all know the story of Anna Nicole Smith and her love affair and marriage to the 94 year-old billionaire. After his untimely passing, there was years and years of litigation which centered on whether he had mental capacity to marry the late Anna Nicole Smith. It never did get resolved.

At common law, very little intelligence was required to enter into the simple contract of marriage. More recently, the courts have taken a more realistic and modern view that the contract of marriage is not as simple as it once was and that a higher standard of capacity is required.

Refusing Inheritance with Disclaimer

What disclaimer means is that if you inherit under a will, no one can force you to actually accept the inheritance. Now, why wouldn’t you want and accept an inheritance? But there are situations where it does exist.

For example, in one particular case, a deadbeat father had not paid child maintenance for many, many years. When his own father in fact died, and the deadbeat was about to inherit a substantial sum of money, he learned that his wife and his children were about to attach on to the inheritance. He accordingly disclaimed the interest in the inheritance just to further punish the wife and children and that right to disclaim was upheld by the courts.

Another benefit of disclaimer can be the introduction of the doctrine of acceleration. For example, if one person benefits for their lifetime and it is to be ultimately turned over to their essential beneficiaries upon their death, they can refuse the inheritance which will accelerate the inheritance of the residual beneficiaries. That can sometimes be advantageous to all parties.

When is Cy-Pres Doctrine Used in Vancouver?

What Cy-Pres Doctrine means is that the courts will try and find a general testamentary intentioned to benefit a charity. If that charity has been misdescribed in your will, the courts will try and find another charity of a similar fashion and intention to instead inherit.

For example, in Vancouver, everyone seems to think that there’s an entity known as Children’s Hospital. It is commonly used in verbiage but it does not legally exist. So if a will is written leaving the assets to a charity such as Children’s Hospital, and the charity has been misnamed, the courts will try and put their self in the position of the testator to find out what the true intention was in benefitting a particular charity and find a substitute charity to instead benefit.

Using DNA in Vancouver Estate Litigation for Proof of Paternity

DNA in British Columbia estate litigation is widely used and it is readily accepted by the courts as proof of paternity in particular. The first time I used DNA was in approximately 1991 when somebody committed suicide off a ferry. Their body was never found. A child from the Northwest Territories of Canada came forward and said that he was her father. She had no proof whatsoever of this. She had a photograph of him in which he looked somewhat like him but other than that, the marriage certificate and birth registration made no mention of this child.

We obtained DNA from the deceased siblings across the country and it concluded that 99.99 percent that she was his child. He died without a will. She inherited his entire estate. It is common to use DNA in estate litigation as many, many people find out late in life that who they thought was the father was in fact not their father. I recently had this happen of the 55 year-old man who found out that his father was not in fact his father and another man who had lived with the family was. It was quite a shock, needless to say. Court orders can be obtained to force people to grant DNA. It is a discretionary remedy but such an order can be obtained if it is necessary. I’ve done so in several occasions.

Removing and Replacing Executors and Trustees

This video is on removing executors and trustees. Personally, I think being an executor is like being a fire hydrant on a street of dogs. You can never, ever get enough appreciation. Unfortunately, it seems to attract a lot of heat. Now there are good executors and there are bad executors. But the fact that you don’t like the executor or you can’t get along with the executor really is not going to be sufficient to remove that executor.

At common law, it has historically been very difficult to remove an executor. But more recently, the courts I think have adopted a more flexible approach. Therefore, you can remove an executor for such reasons as dishonesty or total impasse where nothing is happening whatsoever and things along that line. It’s very difficult. It’s something you’re going to have to consult an expert on and ultimately, it has to be resolved in favour of getting the estate distributed to the proper heirs.

Forfeiture Clauses in Wills

A forfeiture clause is typically a clause that the testator puts in the will to try and make it much more difficult, if not impossible, for someone to contest the will. Typically, it would be a clause that it says, “If my wife ever remarries, then she’s not to inherit,” or something along those lines. Suffice to say, for the purposes of this video, if a clause purports to prevent someone contesting the will on the basis of the Wills Variation Act, that is, the will did not provide adequately for either a child or a spouse of the deceased, then that forfeiture clause will be of no forcing effect.

On the other hand, a properly drawn forfeiture clause other than the Wills Variation Act, can be effective in preventing certain types of court actions but it’s a very difficult area for a lay person to understand. Please feel free to contact disinherited.com if you see such a clause in a will.