Wharton v McMinigal 2014 BCCA 434 is authority for the legal proposition that claims against deceased persons estates must be approached by the courts with the most careful scrutiny and indeed at the outset with some suspicion.
The defendant was the executor of the estate of her late husband. They had lived in a common-law relationship for 22 years and then separated.
Title to the matrimonial home had been in joint tenancy, but several years after separation the deceased severed the joint tenancy without the plaintiff’s knowledge.
The plaintiff asserted that she and the deceased had an agreement between themselves not to sever their joint tenancy.
The court held that the plaintiff had not proven, on the balance of probabilities, that there was such an agreement between herself and the deceased not to sever the joint tenancy.
In fact, the court stated that as an owner of one half interest in the property, the defendant had a prima facie right to partition the property and have it sold. The court in fact did order that the estate be partitioned and the net proceeds divided equally.
In finding that claims against deceased persons must be approached with the most careful scrutiny and indeed at the outset with some suspicion, the court followed two decisions by previous BC Supreme Court judges, namely:
Miller v Miller (1987) 14 BCLR 42 at paragraph 51
Miller was followed and quoted with approval in Fraik v Pilon 2012 BC SC 528 at paragraph 2
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.
Court 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.'”
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.”
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.
It is very old fashioned thinking that court costs come out of the estate , win or lose, as costs are now an important factor in settlement considerations.
The decision Deuschmann Estate v Fallis 2011 BCSC 1009 at paragraph 95 sets out the general principles of costs in estate litigation as pronounced by the BC Court of Appeal in Re Collett Estate 2005 BCCA 291.
The relevant principles as they relate to costs in estate proceedings are set out in Collett Estate, Re, 2005 BCCA 291 (B.C. C.A.) by Smith J.A. who, for the court, said:
 The general principles that guide the exercise of the discretion to award costs in proceedings in the Supreme Court involving executors and trustees are set out in Turner v. Andrews (1999), 23 C.C.P.B. 84, 30 E.T.R. (2d) 126 (B.C.S.C.), aff’d 85 B.C.L.R. (3d) 53, 2001 BCCA 76. That case concerned an application by a plaintiff for an order that his reasonable legal costs be paid prospectively out of the trust fund in issue in his representative action against the trustees of his pension fund. In dismissing the application, Allan J. summarized the relevant principles as follows:
 Section 86 of the Trustee Act, R.S.B.C. 1996, c. 464, reflects the historic statutory authority which permits a trustee to seek the opinion, advice or direction of the Court on a question respecting the management or administration of trust property. In such circumstances, the Court may order the costs of the parties to be paid out of the estate. That principle was expanded in Re Buckton,  Ch. 406 (Eng. Ch. Div.) which held that, in litigation against a trustee, the legal fees of a plaintiff beneficiary may be paid out of the trust fund on an indemnity basis where the issue concerns the interpretation of the trustee’s powers.
Buckton considered the beneficiary’s entitlement to costs in three classes of cases:
(1) An application made by trustees of a will or settlement, asking the Court to construe the trust instrument for their guidance; to ascertain the interests of the beneficiaries; or to answer a question which arises in the administration of the trusts. In such instances, the costs of all parties, which are necessarily incurred for the benefit of the estate, should be taxed as between solicitor and client and paid out of the estate.
(2) An application made by the beneficiaries as a result of difficulty of construction or administration of the trust which would have justified an application by the trustees. Again the application is necessary for the administration of the trust and the costs of all parties, which are necessarily incurred for the benefit of the estate, are paid out of the estate.
(3) An application made by the beneficiaries who make claims adverse to other beneficiaries. Such litigation is adversarial in nature and, subject to the Court’s discretion, the unsuccessful party bears the costs of those whom he or she brings to Court.
 The Court stated at p. 415:
It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am determining rights between adverse litigants I apply the rule which ought, I think, to be rigidly enforced in adverse litigation, and order the unsuccessful party to pay the costs.
96 The facts of this case bear the greatest similarities to the third category of action. Thus, I am satisfied that it is the plaintiffs in this case, rather than the estate, who should bear the costs of this action.
97 Furthermore, an order of special costs against the plaintiffs is warranted. In Starko Estate v. Harbour Cove Investment Corp., 2009 BCSC 1473 (B.C. S.C.), District Registrar Sainty set out how special costs in estate litigation differ from special costs in other types of litigation:
Re Fenotti Estate 2014 BCSC 1533 reviewed the law and held that a murderer of the deceased, his mother, son may not inherit from her as a result of public policy that prevents a wrong doer from benefiting from his or her own crime.
The personal representative of the deceased’s estate applied to the court for various directions, including whether a surviving son who murdered his mother can inherit from her estate on an intestacy.
The Court held a clear NO.
“As to the first question, the petitioner referred me to the decision of Mr. Justice LoVecchio of the Alberta Court of Queen’s Bench in Re Bowlen (Estate), 2001 ABQB 1014, 207 D.L.R. (4th) 175. In that case, a woman had murdered her parents. Both parents left wills under which the daughter would receive bequests. The personal representative of the estates of the parents applied for advice and directions as to who was entitled to receive the interest that the culpable daughter would have received from the estates.
 In obiter dicta at para. 17 of his reasons, Mr. Justice LoVecchio, relying on earlier decisions in Cleaver v. Mutual Reserve Fund Life Association,  1 Q.B. 147, 56 J.P. 180 (C.A.), and Garbe v. Alberta (Public Trustee),  5 W.W.R. 696, 64 Alta. L.R. (3d) 103 (Surr. Ct.), held:
 The rule of public policy which excludes the criminal has also been applied to exclude all claiming under the criminal, unless they have alternative or independent rights. In order to take under these independent or alternative rights, the person exercising the right must have clean hands. [Footnote omitted.]
 His statement as to the existence of a rule of public policy preventing a criminal from benefitting from his or her crime is supported by a line of authority in this province, to which LoVecchio J. did not refer.
 In In re Medaini Estate,  2 W.W.R. 38, 38 B.C.R. 319 (S.C.), Mr. Justice Murphy heard an application, brought by the administrator de bonis non of the estate of Mary P. Medaini, for directions as to whether, in the case of an intestacy, a murderer is entitled to share in the distribution of the estate of the murdered person.
 Murphy J. held, at 39:
The English Courts have decided that a murderer can take nothing under the will of his victim. The decisions are based upon public policy. I can see no reason why the principle is not applicable to cases of intestacy. The reason assigned in some American decisions for refusing to deprive a murderer of benefits accruing to him under the intestacy of his victim is that to do so would be to contravene the express provisions of the Statutes of Distribution. This reason would be equally valid in the case of a will which also depends upon a statute for its validity. The Wills Act, R.S.B.C., 1924, ch. 274, declares that the will speaks from the death of the testator. The English decisions binding on me have overridden this provision in the case of a murderer. There is nothing which makes the Statutes of Distribution more sacrosanct than the Wills Act. If public policy is a good ground for overriding the latter, it is equally so for acting likewise in regard to the former. I, therefore, hold the murderer takes nothing under the intestacy.
 In Baumann v. Nordstrom (1959), 30 W.W.R. 385, B.C.J. No. 42 (S.C.), Mr. Justice Wilson, as he then was, considered a case where a man was killed by a fire which destroyed his dwelling. He left no will. His widow, an inmate of the provincial mental hospital, had set the fire that killed him. Acting through her committee, she attempted to claim her statutory share of his estate. Her claim was opposed by a daughter of the man from a previous marriage.
 At 386, Wilson J. adverted to two propositions that were accepted by both counsel before him:
1. That if her crime, whether murder or arson, killed her husband she cannot inherit and the rule is the same on an intestacy as it would be if the property had been willed to her. See In re Sigsworth; Bedford v. Bedford  1 Ch 89, 104 LJ Ch 46.
2. That if at the time she set the fire she was insane within the meaning of the M’Naghten rules there was no crime and she may inherit. See In re Pitts; Cox v. Kilsby  1 Ch 546, 100 LJ Ch 284; and In re Houghton  2 Ch 173, 84 LJ Ch 726.
 Wilson J. held, at 396, that the defendant wife, when she set the fire, “did not then appreciate the nature and quality of her act or know that it was wrong.” Accordingly, she was entitled to inherit.
 A majority of the British Columbia Court of Appeal, in reasons for judgment reported at 34 W.W.R. 556 and 27 D.L.R. (2d) 634, did not find it necessary to review the finding as to the defendant’s insanity, but allowed the appeal of the matter on the ground that the trial judge was without jurisdiction to determine by way of originating summons, or other civil proceeding, whether or not a person had committed a crime.
 In reasons for judgment reported at  S.C.R. 147 and 37 W.W.R. 16, the Supreme Court of Canada allowed the appeal and dismissed the cross appeal, thereby restoring the decision of the trial judge. Mr. Justice Ritchie, for the majority on the issue, stated at 156 that:
The rule of public policy which precludes a person from benefiting from his or her own crime is an integral part of our system of law, and although some doubts have been raised as to whether this rule overrides the statute law as to the distribution of the estate of an intestate (see In re Houghton, Houghton, v. Houghton [ 2 Ch. 173 at 176]), the better view appears to me to be that it applies to such cases (see In re Pitts, Cox v. Kilsby [ 1 Ch. 546 at 550], Whitelaw v. Wilson [(1934), 62 C.C.C. 172 at 177], and Re Estate of Maud Mason [ 1 W.W.R. 329, 31 D.L.R. 305]). As Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association [ 1 Q.B. 147, 61 L.J.Q.B. 128]… at p. 156 said:
It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.
Plaintiff’s often allege that a purported trust is a sham trust that the courts should ignore.
The following is the criteria that the courts utilize when dealing with such an assertion as was discussed in
M. Dhaliwal Holdings Inc. v. Pacific Blue Farms Ltd. , 2014 BCSC 1482
45 The petitioner argues that, should a trust be found in this case, the Registrar should have gone on to find that the trust was a sham, quoting the test for a “sham” transaction given by Lord Diplock in Snook v. London and West Riding Investments Ltd.,  2 Q.B. 786 at 802:
…. it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities … that for acts or documents to be a “sham”, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.
 As can be seen from the above statement, the essence of a sham transaction arises from the intention of all parties to the instrument. As stated in Waters at 146, this concept is different than the requirement of certainty of intention and is more concerned with the intention of the settlor to perpetrate an “illegality” or “illusory trust”, as a result of which the trust is void.
 In addition, the principle has been applied in Canada in respect of alleged “sham trusts”, often in cases involving bankruptcies and fraudulent transactions affecting creditors. In Hirji v. Scavetta (1993), 15 O.R. (3d) 371,  O.J. No. 2546 (Gen. Div.) at para. 32, the court found that a transfer in trust was designed to avoid creditors. In Biggar (Re), 2005 BCSC 1657, the court, after reviewing other examples of “sham trust” (para. 23), concluded that the bankrupt had dealt with the subject property as his alone and had never intended to divest any beneficial interest in the shares.
 In Forsyth (Re), 2010 BCSC 1720, and following Biggar and Hirji, the court found a declaration of trust to be void as an attempt by a bankrupt to shield his assets from his creditors. At para. 24, the court accepted that post “trust” conduct was relevant to a consideration and determination of the true intention of the settlor.
To sever the joint tenancy and convert it into a tenancy in common where there is no right of survivorship, the co owner can simply file a transfer from oneself to oneself for the sole purpose of severing the joint tenancy.
45 If the parties to a marriage, solemnized in good faith and intended to be in compliance with the legislation, are not under a legal disqualification to contract such marriage and have lived together and cohabited as a married couple after such solemnization, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.[FN1] Where neither party has the requisite good faith, no defect will be overlooked and the marriage will be regarded as invalid.[FN2]
§46 The mere irregularity of failing to wait for the expiration of the time set for the issuing of the licence before getting married will not make the marriage a nullity.[FN3] If a marriage does not formally comply with the legal requirements, the party who wishes to prove the validity of the marriage has the burden to prove the marriage was valid on a balance of probabilities.[FN4]
§47 Being under age at the time of obtaining a licence does not invalidate the subsequent marriage, unless the provincial statute expressly states that the marriage is void.[FN5]
§48 The validity of a marriage and its formal requirements are determined according to the law where the marriage took place.[FN6] If a marriage has been entered into in a country by the law of which no formalities are required other than an agreement to marry followed by cohabitation, such marriage will be regarded as formally valid in Ontario.[FN7]
§49 Whether a religious ceremony is required depends entirely upon the law of the place where the marriage is celebrated; a marriage valid under such law cannot be questioned on the ground that it violates religious principles binding on one or both parties to the marriage.[FN8] On the other hand, a religious marriage is treated as void if it does not receive recognition under the law of the place where the marriage is celebrated.[FN9]
§50 If a marriage has taken place in another country and all that is known is that it was publicly solemnized by a minister or other person who usually solemnizes marriages in that country, and that the parties ever after were treated and reputed there as man and wife, the court should, in the absence of express proof of some law of that country rendering such a marriage illegal, presume the marriage to have been duly contracted according to the law of the country in which it took place.[FN10] In respect of the formal validity of the marriage, that is, the validity of the ceremony, once the ceremony and subsequent cohabitation have been proven, the law will presume that everything necessary to the validity of the ceremony occurred or was performed.[FN11] Retroactive legislation of foreign countries validating informal marriages contracted within the foreign jurisdiction is recognized as binding.[FN12] Consent must be considered as part of the form of marriage, and the forms of entering into a contract of marriage are to be regulated by the lex loci contractus.[FN13]
FN1. Marriage Act, R.S.A. 2000, c. M-5, s. 23(1); Marriage Act, R.S.B.C. 1996, c. 282, s. 11 [am. 2002, c. 74, s. 45; 2011, c. 25, s. 403]; Marriage Act, R.S.M. 1987, c. M50, C.C.S.M., c. M50, s. 29 [am. 2008, c. 42, s. 62(5)]; Marriage Act, R.S.O. 1990, c. M.3, s. 31 [am. 2005, c. 5, s. 39(5)]; Marriage Act, S.S. 1995, c. M-4.1, s. 21; Luu v. Ma (1999), 1999 CarswellOnt 493 (Ont. Gen. Div.) (parties married in Vietnam; if marriage not valid according to Vietnamese law, marriage validated pursuant to Marriage Act, s. 31; parties intending to marry, living together as husband and wife and having child together); Upadyhaha v. Sehgal (2000), 2000 CarswellOnt 3306 (Ont. S.C.J.) (saving provision not operating to create valid marriage as parties not living together or cohabiting as man and wife after ceremony); McKenzie v. Singh (1972), 1972 CarswellBC 163 (B.C. S.C.) (marriage for immigration purposes; marriage not entered into in good faith); Alspector v. Alspector (1957), 1957 CarswellOnt 39 (Ont. C.A.) (lack of marriage licence not invalidating marriage); Czuba v. Hassan (1977), 1977 CarswellOnt 172 (Ont. H.C.) (parties intending compliance); Alspector v. Alspector (1957), 1957 CarswellOnt 38 (Ont. H.C.); affirmed (1957), 1957 CarswellOnt 39 (Ont. C.A.) (position under Act being unclear when only one party acting in good faith); Friedman v. Smookler (1963), 1963 CarswellOnt 48 (Ont. H.C.); Birinyi v. Lindstrom (2009), 2009 CarswellBC 180 (B.C. S.C.).
FN6.Cao v. Le (2007), 2007 CarswellBC 737 (B.C. S.C.) (parties having no ceremony to mark marriage but marriage registered in appropriate government office in Vietnam; numerous people in Vietnam satisfied that parties validly married under Vietnamese law; accordingly, parties’ relationship meeting requirements of marriage under Vietnamese law; parties therefore spouses for purposes of Canadian legislation in question).