The Purpose of Obituaries

Mental Incompetency and the Patient's Property Act
Obituaries are news article that report the recent death of a person that typically accounts for the person’s life, family members, glowing tributes , noteworthy achievements  and   information about an upcoming funeral service.
It could be said that the main purpose of an  obituary is  to honour and even aggrandize the life of the deceased. They typically subtly guide human behaviour as how to behave  in life and how to be favourably remembered.
Three coincidental matters relating to obituaries came to my attention yesterday.
One was a review of the New York Times setting comprehensive and glowing life tributes  of various socialites and significant individuals.
The second was an obituary of an elderly man who died in Texas, whose daughter and family wrote a vitriolic obituary stating amongst other things that he lived “much longer than he deserved”;
The third was a forthcoming movie entitled “The Last Word”, starring Shirley MacClain who as a controlling businesswoman hires a journalist to pre-write her obituary, only to find that the typical comment offered by her “friends” and  associates is that they hope she dies soon. This results in a life altering experience  for Ms. MacLain’s character.
Most of us are familiar with what an obituary is and have probably seen or even written a “typical” obituary in local newspapers as well as perhaps reviewed  the more refined,expensive and extensive obituaries that appear in publications such as the New York Times. Many magazines such as MacLeans or the Economist publish one full page obituary each week typically reflecting on the subject’s life and influence on world history. It is not uncommon for major world figures, heroes, entertainers, and such to have “pre written” obituaries for quick publication in the event of that person’s demise.
In my experience as an estate litigation lawyer I frequently ask my clients to bring in the obituary as it is common for me to note that they are not always “accurate” in that often certain  members of the   family are not mentioned at all or some other hurtful comment is made or omitted about them.
The vitriolic Texan obituary  was so newsworthy that it made international news for stating such things as ” his hobbies included being abusive to his family, expediting trips to heaven for the beloved family pets, his life serve no obvious purpose, he did not contribute to society or service the community and he possessed no redeeming qualities besides sarcasm.
Not content to stop there, the writer further  stated that there would be no funeral service, no prayers for eternal peace and no apologizes to the family he tortured.
His remains would be cremated and kept in the barn until the family donkey’s wood shavings run out. His passing proved that evil does in fact die and hopefully marks a time of healing and safety for all.
The writer stated that the deceased appreciated honesty and that it would have been offensive to portray him dishonestly.

Wills Variation:Court Rewrites Will

Court Rewrites Man's Will to Include Daughters

court rewrites man's willCourt Rewrites Man’s Will to Include Daughters (Globe and Mail Article)

Son was named as sole beneficiary until judge intervened Where there’s a will, there’s a way to have it overturned.

A B.C. Supreme Court Judge has ordered a man to a split his late father’s estate, despite the fact the patriarch chose to leave his four daughters out of his will.

One of the women said she’s gratified by the court’s decision while her brother is “devastated.”

Such cases are becoming more and more common in B.C., which legal experts say is the most “plaintiff friendly” province in Canada for spouses and children who have been disinherited.

In his ruling, Mr. Justice Randall Wong said the father, William Werbenuk, was “a racist whose will and personality dominated his family.” He said Mr. Werbenuk “resorted to and engaged in harsh and brutal corporal and other punishments.” Mr. Werbenuk, who died in March of 2008 at age 86, also demeaned his daughters and made them wash his feet, said Judge Wong.

Mr. Werbenuk named his son, Randall, the sole beneficiary and executor of his will. His estate was valued at approximately $434,000, although the judge noted that did not include farmland in Saskatchewan or a valuable violin collection. He said the exact value of the remaining assets is still uncertain.

Judge Wong said under the province’s Wills Variation Act, Mr. Werbenuk did not take “contemporary moral standards” into account when he excluded his daughters. The judge said the women attempted to have relationships with their father, despite his harsh treatment, but it was clear he favoured his son.

Patricia Skwarok, one of the Mr. Werbenuk’s daughters, said she is pleased with Monday’s ruling. “It was fair, just and equitable to the family who was in crisis,” she said in an interview.

Ms. Skwarok, a 53-year-old nurse who resides in Penticton, said she wasn’t surprised the judge essentially rewrote her father’s will.

She said wills that allow a parent to leave everything to one person at the expense of others should remain a thing of the past.

“In the 1700s and 1800s that was social standard. It is not [in 2010].”

Charles Albas, lawyer for Ms. Skwarok’s brother, said his client was devastated by the decision.

He says, “I feel like I’ve been kicked in the head’ It’s sad.”

Mr. Albas said he will recommend his client have independent counsel look at the ruling with fresh eyes, but an appeal is unlikely.

“It’s very hard to appeal a case like this because it is based on facts.

“The trier of facts is Justice Wong and, basically, he heard all of the evidence and decided this was a case where a major variation was called for.”

Rick Covell, who represented Ms. Skwarok and two of her sisters, said such court rulings are more common than the public might think. He said there’s been a “steady stream” of Wills Variation Act cases in recent years.

“It’s not that rare because people will occasionally in their will let their prejudices and biases get away with them,” he said.

Keith Sabey, counsel for the fourth woman, said B.C. legislation is the most plaintiff friendly in the country when it comes to such cases.

“The spouses and the children have the law favour then the most in B.C. if they’re trying to challenge the wills, and probably by quite a bit,” he said.

“The B.C. legislation has a broader base for people who would have standing to bring this kind of claim. In other provinces, my client, who’s an independent adult child who has no financial need … would not have been able to bring this application.”

Trevor Todd, a Vancouver lawyer who has handled several cases involving disinherited children, said such rulings always bring a great deal of media attention.

“If you sit down at a dinner party… you’ll get half the people saying he should be able to leave it to who he wants to, and you’ll get the other half saying, ‘That isn’t right.'”

– The Globe and Mail

BC Estate Litigator: Wills Variation: Court Varies Will In Favour of Daughters

Court Overturns Man's Will on Moral Grounds

Court OverturnsTrevor Todd and Jackson Todd have over 6o years experience in litigating wills variation claims

The British Columbia Court over turned and varied a will where his four daughters had been left with nothing.

William Werbenuk died more than two years ago with just enough money in the bank to pay for his funeral. The 86-year-old widower’s will gave all assets to his only son, Randall, and left his four daughters with nothing.

This week, a B.C. Supreme Court judge overturned the Pentiction, B.C., man’s will, saying his estate should be distributed to all of the man’s children based on “contemporary moral standards” – a move that has sparked much debate about a judge’s right to change a person’s will after they die.

Justice Randall Wong, ordered the estate, including Mr. Werbenuk’s Saskatchewan farmland and a valuable and extensive violin collection, be split according to need among Mr. Werbenuk’s son and four daughters, three of whom testified having endured years of abuse at the hands of their father.

The daughters have a “valid moral claim to share in the family wealth,” Judge Wong ruled.

According to the ruling, Mr. Werbenuk physically and emotionally abused his daughters. As punishment, their father regularly forced them to wash his feet, the women testified – a detail that helped lead Judge Wong to decide that the father was a “hard and rigid man who ruled his family, and especially the women, with an iron fist.”

Some criticized Judge Wong’s decision as a threat to “testamentary autonomy,” or, in other words, a person’s right to give their assets to whomever they want – a long running and divisive debate among B.C.’s litigators and defenders.

“There are lots of people in the bar in B.C., myself included, who think people should be allowed to give their stuff to whoever they want it to be given to,” said Bruce Hallsor, partner at Crease Harmon LLP in Victoria a d the immediate past president of the Canadian Bar Association’s national section on wills and trust.

“This gentleman, in this particular case, seems to be of unfortunate temperament and old-fashioned. The day before he died, he could have given everything he owns to his son.”

In British Columbia, a parent has a moral obligation to provide for their children after death under the Wills Variation Act, said Trevor Todd, a lawyer who exclusively defends disinherited people. It’s also the only province in which a non-dependent adult child can challenge his or her deceased parent’s will.

In most other provinces, only dependents and spouses can appeal a will before a judge through a similar wills variation act, he said.

The Wills Variation Act has helped many adult children who feel they have been unjustly denied their parents’ wealth after death, said Mr. Todd.

“I see lots of cases like that, where the children are damaged goods,” he said. “What a lot of these cases are is the last kick at you from the grave, the last insult.”

Judges are often sensitive to that and they do need to make judgments on individual cases because they’re all so different, he said.

A parent may explain why children were disinherited, but that’s only one side of the story, said Mr. Todd.

“Sometimes you’ll see wills where a father will be disinheriting his daughter, saying ‘She hasn’t called me in 30 years,’ When you tell the daughter dad says he hasn’t seen her, that they’re estranged, she might say ‘God damn right we are, he molested me,” Mr. Todd said.

Randall Werbenuk’s lawyer, Charles Albas, said his client is “devastated” by the judge’s ruling. He felt he was following his father’s wishes and that his estranged sisters were exaggerating.

Judge Wong empathized with the harsh life the daughters had been subjected to and Randall Werbenuk has to accept that, Mr. Albas said.

“[My client] is of the opinion that the judge was unduly hard on him. He basically did what his dad told him and he had a reasonable expectation that in doing that, he would be rewarded [in the will],” he said.

Randall Werbenuk will now receive 20% of his father’s assets.

His lawyer is considering an appeal.

– National Post

Wills Variation-Disinherited Daughter Wins

Disinherited Daughter Fought Back

Disinherited Daughter. Like Cinderella, the little girl named Margaret worked to earn her room and board. She washed and swept and did what she was told.

By the time she was five years old, her mother already passed her from home to home.

Now she slept behind a curtain in a dank basement and tried to be obedient. When she wasn’t she was whipped by a switch.

The woman she had been dumped with collected her baby bonus cheques, plus $20 a month from Margaret’s mother – and her mother was no more generous in death than she had been in life.

She disinherited her daughter she had given birth to and abandoned. Margaret Austin was left just $100 in her mother’s will.

The rest of her substantial estate went to two daughters she had later adopted and raised.

After a lifetime of quietly struggling to move beyond a childhood of abuse and neglected, Austin had enough.

She decided to fight back. She contested the will.

“This wasn’t about money,” said Austin, now 66. “This was about my relationship with my mother.”

Trevor Todd, the Vancouver lawyer and estate expert who represented Austin in her case, said, “People always say it’s not about the money. Well, actually, it is. If someone is left out, they feel really unloved.”

Money and love are difficult threads to untangle.

“Inheritance is a big deal,” said Todd. “A lot of parents just want to get one last kick from the grave. People are victimized and they are hurt.”

 

Mentorship Revisited

Mentorship Revisited

The beacon of hope shines on in the practice of law

Three years after our article, “Mentorship: A Beacon of Hope in the Practice of Law” was published in the June 2011 issue of BarTalk, much has evolved in our mentor association and in our respective legal careers.

THE MENTEE PERSPECTIVE – THE STORY OF CANDACE CHO

Since 2011, much has changed in my life. I have expanded my business from a sole practitioner practice to joining forces with my past mentor, Judith A. Janzen, to expand the firm and brand that I developed back in January 2010: Onyx Law. Together, Judith and I now message a busy boutique family and estate litigation firm. We hung up our shingle in April 2012 and have been laughing and practising law together since then.

Professionally, my practice and experience has grown leaps and bounds thanks to the practical mentorship and awesome opportunities that Trevor has generously bestowed upon me. I have been lead counsel on cutting edge estate litigation cases with Trevor happily sitting in the backseat as my cheerleader and have been running many files independently.

Trevor and I continue to meet for our weekly dim sum lunches, and we continue to discuss litigation strategy, marketing, client management, politics, and anything else under the sun that we wish to discuss on that particular day, except now we are often joined by Trevor’s son, Jackson Todd, who is articling with him, and my associate, Janis Ko. The table is more crowded, and the conversation even more lively.

I have been extremely fortunate to have received such generous mentorship, and now have the pleasure of paying that forward in mentoring the members of my team at Onyx, and supporting other young counsel that have sought my advice. It is my firm view that mentorship is the way and the hope of lawyers being able go happily practice law into the future.

THE MENTOR PERSPECTIVE – THE STORY OF TREVOR TODD

As a forty-year call, watching Candace bloom into the very capable lawyer that she has become has been a rewarding experience that has motivated me to remain practising with renewed enthusiasm, while many of my classmates are in the process of retiring or have retired. I recognized Candace’s talents very early on and have considered myself the coach, mentor, and almost father-like figure to her over literally hundreds of lunches and thousands of emails.

From the outset, I raised the issue with her of what happens in several years when she was capable and no longer needed the hand holding of a mentor?

The answer was the evolution of our mentorship relationship into one more of sponsorship – I introduce Candace, on a regular basis to senior counsel, give her cases way beyond what most young lawyers would ever get to handle on their own, and otherwise promote her at almost every opportunity I am given.

Sponsorship has evolved as the eventual consequence of our very successful mentorship relationship and something that can continue into the foreseeable future.

Lastly, there is something great about the combination of young and old practitioners.

Candace is half my age but twice as bright and way more energetic. Our relationship has been completely symbiotic, with each of us growing both professionally and emotionally throughout the process. I highly recommend the process of mentorship to senior lawyers especially, and suggest to both young and old practitioners to be open to and seek each other out, with the view of mentoring and seriously sharing the senior practitioner’s knowledge and experience as thousands of young lawyers are “drifting” for lack of proper guidance in sufficient numbers.

Baby Could Inherit Millions if Proved to be Daughter of Slain Vancouver Man

Baby Could Inherit Millions if Proved to be Daughter of Slain Vancouver Man

A Chinese woman trying to prove her baby daughter has sole claim to the fortune of a slain West Vancouver millionaire has won her bid for a paternity test. Baby could inherit millions.

A new British Columbia law says the child stands to inherit everything if the results match.

The B.C. Supreme Court has ordered DNA testing on the remains of Gang Yuan, whose body was found chopped into more than 100 pieces. A man has been charged with second-degree murder.

Contending she is Mr. Gang’s former lover and the mother of his child, Xuan Yuan argues her child is legally entitled to inherit the man’s estimated $50-million estate.

The latest development in the saga worthy of a soap opera occurred on July 14, when a judge approved the woman’s application for the independent genetics investigation.

A DNA laboratory has now been authorized to obtain a sample of remains stored by the B.C. coroner, with testing to be completed by Aug. 26.

The court ordered the results be provided to the administrators of Mr. Gang’s estate. The DNA sample must also be preserved and made available for testing by any other possible children of the dead man.

“To the knowledge of the petitioner, the deceased had no other children with any claim to his estate when he passed away,” court documents say, although the claim of Mr. Gang fathering only one child has not been proven.

Requests for comment to lawyers representing the administrators were not returned.

Trevor Todd, a Vancouver based litigation estate lawyer with 42 years of experience, said a positive paternity test would entitle the child to her father’s fortune.

“That’s going to be pretty darn conclusive. You can have all sorts of other circumstantial evidence, but it comes down to blood. It’s 100 per cent,” he said.

“It’s automatic, nothing to contest. That little rich kid’s going to need a bodyguard,” he joked.

– Globe and Mail

British Columbia Backs Baby’s Bid for Bigbucks

British Columbia Backs Baby's Bid for Bigbucks

BC Court orders DNA test for child who may inherit Bigbucks $50M

A Chinese woman trying to prove her baby daughter has sole claim to the fortune of a murdered West Vancouver millionaire has won her bid for a paternity test.

A new British Columbia law says the child stands to inherit everything if the results match.

The B.C. Supreme Court has ordered DNA testing on the remains of Gang Yuan, who was murdered May 2 and whose body was found chopped into more than 100 pieces. A man has been charged with second-degree murder.

Contending she is Gang’s former lover and the mother of his child, Xuan Yang argues her child is legally entitled to inherit the man’s estimated $50-million estate.

The latest development in the saga occurred on July 14, when a judge approved the woman’s application for the independent genetics investigation.

A DNA laboratory has now been authorized to obtain a sample of remains stored by the B.C. coroner, with testing to be completed by Aug. 26.

Trevor Todd, a Vancouver-based estate litigation lawyer with 42 years experience, said a positive paternity test would entitle the child to her father’s fortune.

“That’s going to be pretty darn conclusive. You can have all sorts of other circumstantial evidence, but it comes to down to blood. “It’s 100 percent,” he said.

“It’s just automatic, nothing to contest. That little rich kid’s going to need a bodyguard,” he joked.

A positive result would mean the case is clear-cut based on the law that came into force in March 2014, called the Wills and Estate Succession Act, added Victoria lawyer, Charlotte Salomon, whose been practising in the field nearly two decades.

The law defines what happens to a person’s estate if they have no will, as was the situation when Gang was killed on May 2.

If the baby is prove to be his offspring, the court would appoint a guardian to hold the money in trust. The remaining money would flow to the child at age 19.

– Vancouver Metro

Signs of Gold-Digger Syndrome

Signs of Gold-Digger Syndrome

Berger was advised to challenge her father’s will not on grounds of “undue influence” but under a section of the B.C. Wills Variation Act that says a “judicious parent” bears a responsibility to provide for biological sons and daughters even if they’re adults.

Vancouver lawyer Trevor Todd who wasn’t involved in this case but writes and lectures on estate issues, says coercion is difficult for family members to prove. If they fail, they’ll usually be stuck with the costs.

Nevertheless, he’s seen a big increase in “undue influence” allegations.

‘I have to warn [elderly men], sometimes that if they lose their wife, they’re just a sitting duck,’ says Todd. “They’re going to be besieged by a lot of well-intentioned women and a whole lot of other women who really are looking for financial gain. They come out of the woodwork and they throw a little bit of sex at the old guy and the next thing you know he’s off his rocker.”

Todd says he’s also heard accusations of health-care professionals taking gifts and bequests from elderly patients. He dealt with one recently in which a woman made a “substantial gift” to her doctor’s wife.

“Her own children reported it to the B.C. Medical Association and that doctor was hauled up on the carpet and he gave it all back,” says Todd. “He gave it back so fast it made your head spin.”

Todd tells his clients to be alert to the early signs of gold-digger syndrome.

“It’s all done on the quiet,” he says. “It’s done by people who have a grand design. They change the locks, the dad’s never available to answer the phone, they estrange people, they speak for them all the time. They deny access to medical [treatment].

They give them lots of medications. They threaten to put them in a home and tell [the elderly person] if it wasn’t for them they’d already be in a home. I could write a book on how to do it. But how to prove it? There are never any witnesses.”

He says some clients use private investigators. He advises others to keep records, to write letters to doctors and other health officials and to document visits, phone calls and financial transactions.

– The Province

Potential Inheritance Amounts to Rise

Potential Inheritance Amounts to Rise

Spouses and children of deceased people who are disinherited in BC have the ability to utilize the provisions of S 60 WESA to vary the will in their favour.

This huge inter generational wealth transfer will have important economic consequences that will impact wealth distribution, debt reduction ,  savings and the real estate market.

Canadians are living longer and in many cases, accumulating more wealth.

There are about 2.5 million Canadians over age 75, close to 45 per cent of them widowed. The number of Canadians 75 and older has jumped 25 per cent from a decade ago and the figure is expected to continue increasing.

When  I did estate disinheritance cases in the 1990’s, a typical estate was a house worth $150,000 and savings or pensions of another $100,000.

In recent years, the typical size of a Vancouver estate was about $1.5 million, and depending on real estate, often much larger.

It is known that the “Bank of Mom and Dad ” has been busy making large advances on inheritances in recent years, typically for assisting their children to buy housing. This trend is expected to continue as housing prices soar beyond the means of average income earners.

The transfer of wealth will help the retirement security of low- and middle-income Canadians, but is likely to have little impact on the decision of wealthy Canadians to retire early, because they don’t need the money. Many workers such as myself continue to work beyond the former magic mark of 65 years, simply because they enjoy their work and thus will continue to increase their wealth.