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.

Severance of Joint Tenancy By Conduct

Severance of Joint Tenancy

Severance of Joint Tenancy

 

The Tessier v Tessier 2001 SKQB 399 reminds one that even the simple fact of parties signing an agreement to sell the jointly owned property and pay the proceeds into separate accounts can by their conduct sever the joint tenancy into a tenancy in common.

 

The deceased and husband were joint tenants of a farm property on which they resided until retirement. In 1996 they decided to sell the property to the husband’s nephew and his wife and an agreement for sale was executed in the presence of parties’ lawyer .

The  Agreement set out a schedule of payments which were to be made equally to deceased and husband, who maintained separate bank accounts.

The  Deceased died in 1999 and by her will left residue of estate to be divided among her siblings in equal shares , and the Will made no specific reference to the land.

 

The Executors of the estate brought proceedings contending that the sale had severed the joint tenancy so that one-half balance owing under agreement for sale was an asset of estate.

 

The Court held  Joint tenancy had been severed.

Two distinguishing features of joint tenancy are the   right of survivorship and the four unities of title, interest, possession and time.

The  Onus of establishing that a joint tenancy has been severed is on person so contending.

A Sale or lease by all of joint owners does not itself result in severance because this arrangement is compatible with continuation of joint ownership in relation to proceeds of sale .

However,  the deceased and husband had agreed that one-half of purchase price would be paid to each of them and the proceeds were maintained by them in separate bank accounts .

These facts were sufficient indicia of destruction of unities of interest and possession, both by agreement and course of conduct.

Wills Variation -Daughter Succeeds vs Second Spouse

Wills Variation- $15,000 Inheritance Increased to $250,000

McLellan v McLellan 2011 BCSC 461 is a wills variation case involving interesting facts, where a daughter’s bequest was increased from $15,000 to $250,000 of a $1.75 million estate.

The testator married his 1st wife in 1966 and they had 2 children.

In 1988 his wife suffered a stroke and was left debilitated.

In 1990 the testator left his wife for another woman, whom he married within one year.

The plaintiff was 19 years when her father left the matrimonial home.

The plaintiff was left to care for her debilitated mother over a relatively long period of time that interrupted her education.

The plaintiff also had to finance her post secondary education in circumstances where she had a reasonable expectation that her father would assist her financially, which he did not.

The relationship between the plaintiff and her father remained strained for many years.

The deceased left the plaintiff $15,000, her sister $35,000, and the residue of the estate to his 2nd wife.

No reasons were stated for the modest bequest to the plaintiff.

The estate was approximately $1.75 million.

In addition his wife received assets of almost $1 million outside of the estate.

The widow also had an income of approximately $250,000 per year from the various franchises that she and the deceased owned.

The plaintiff had inherited $300,000 from her mother’s estate, and she and her husband had joint assets of $1.78 million.

The court increased the plaintiff daughters inheritance from $15,000 to $250,000.

It is noteworthy that the court found that the deceased, as the parent and much more mature adult, bore the greater responsibility for the estrangement between himself and the plaintiff.

It is the experience of us at disinherited.com, that the reasons for the estrangement between a parent and a child are more often than not directly attributed to improper parenting rather than the fault of the child.