Pleading Invalid Will and Wills Variation Claim Together Allowed

Inconsistent Pleas

From time to time during the almost 40 years that I have practiced estate litigation, I have been told by various opposing counsel that it is inappropriate to plead in the same court action that a will is not valid, and therefore must be proved in solemn form, together with a claim alleging that if the will is valid, then it should form part of the estate, and the will should be varied under the wills variation act.

I have been told by countless counsel that there is a case that says this but upon my challenge I have never had it produced, but have still had it recently argued.

I have done it many times myself, but here is a case where it was clearly dealt with on that basis.

I am pasting in the head note of the decision Petrie v Burnett 2008 BCJ 2094, where Mr. Justice Nathan Smith allowed such inconsistent pleas.

He in fact found the will valid and then buried it under the provisions of the wills variation act.

Application by plaintiffs for proof of the testator’s 2005 will in solemn form allowed but will varied to provide a distribution of 40 per cent to the plaintiffs, 35 to the son and 12.5 to each of the daughters.

The  Will incorrectly stated testator’s children had not repaid loans and had made no attempt to correspond with him.

The  Testator had testamentary capacity but had disinherited his children for no reason .The  Plaintiffs received testator’s real property as joint tenants and daughters received an interest in that property through a settlement — Wills Variation Act, s.2.

Application by plaintiffs for proof of the testator’s 2005 will in solemn form; application by the tes­tator’s son for proof in solemn form of the testator’s 1982 will, of which he was the executor and sole beneficiary. In the alternative the son relied on the Wills variation act to claim a share of the estate.

Two of the testator’s daughters had reached a settlement with the plaintiffs with respect to the 2005 will, the thir daughter was not involved in the proceeding. The testator executed the 2005 will a few hours before his death, leaving all he owned to the plaintiff husband and wife, who were his friends. The 2005 will incorrectly stated that the testator’s children had not repaid loans to the testa­tor and had made no attempt to correspond with him or provide him comfort. The plaintiffs were living in rental accommodations as their house had been destroyed by fire and they did not have in­surance. Prior to his death the testator transferred residence to himself and the plaintiffs as joint tenants and instructed that the purchase of another property, completed after his death, was to be done with the plaintiffs added as joint tenants. The properties were worth approximately $300,000 and the testator’s estate was worth approximately $460,000; the settlement of the two daughters’ claims resulted in them each receiving a 25 per cent interest in both properties. It was the evidence of multiple witnesses, including a doctor to whom the testator had given a “do not resuscitate” or­der, that the testator was able to understand and communicate with them and none testified to any concerns about the testator’s mental condition or capacity. There was some evidence of memory lapses and the testator’s physical condition had been rapidly deteriorating due to pancreatic cancer.

HELD:  The 2005 will was valid but was varied to provide a distribution of 40 per cent of the estate to the plaintiffs, 35 per cent to the son and 12.5 per cent to each of the daughters.

While there were suspicious circumstances, the plaintiffs established that, on a balance of probabilities, the testator had testamentary capacity when he signed the will. The testator had disinherited the children for no valid or rational reason.

Provision was to be made for the testator’s children, the plaintiffs should receive the largest share but they had retained the testator’s real property and the daughters’ settle­ments had allowed them to share in the real property.

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