BC Contested Estates- Gold Diggers

Gold Digger "Wife" Gets 0,000 from .5 MillionVulernable Victim

Trevor Todd and Jackson todd have handled contested estates for over sixty combined years and have experience in dealing with ” gold diggers”.

One of the most outrageous recent cases of blatant gold digging is Wu v Zhang 2011 BCSC 1205.

This a much younger gold digger, who married a much older, physically and mentally vulnerable man, shortly before his death.

At the time the couple met in 2006, Mr. Wu who had been recently widowed and was unable to care for himself or his home.

Mr. Wu had a home and other assets worth approximately $ 3.6 million.

Ms. Zhang testified that Mr. Wu had pleaded with her to take care of him and that she did so from the day they met.

She further testified that although she had little interest in material wealth but that Mr. Wu had insisted on transferring property to her out of gratitude.

The reality was that Wu lived in his own home, in one squalid room with a hot plate, small fridge and microwave. He lived in filth, unwashed and unclean and had open ulcers on his legs.

In 2008 Vancouver Health found him living in these deplorable conditions.

They had him assessed and declared incompetent as of December 16, 2008.

Nevertheless, Mr. Wu signed a Power of Attorney to Ms. Zhang on April 4, 2009.

In August 2009 the couple married and less than a month later he was admitted to intensive care. By September 16 2009, the court had declared Mr. Wu to be incompetent.

Under the “marriage agreement” prepared by Ms. Zhang, Mr. Wu purported to give her all of his lifetime accumulated savings.

The Public Guardian brought an action on behalf of Mr. Wu to recover the valuable property that Ms. Zhang said Mr. Wu had gifted her.

The Court found the purported marriage agreement to be invalid as a total fabrication.

The Court did not accept Ms. Zhang’s evidence and dismissed her claims to the property and to spousal support.

The court instead treated the matter as short term marriage, and awarded Zhang $150,000 from the sizable estate.

But for the involvement of Vancouver Public Health and the Public Trustee Ms. Zheng may well have successfully retained assets in excess of $3.5 million.

Court Declines to Expand Definition of Child

child definition

Child Under Wills Variation Act Defined and Not Expanded

The recent British Columbia Court of Appeal decision in Peri vs. McCutcheon 2011 BCCA 401 clarifies that the Wills Variation act of British Columbia only provides for claims brought by biological or adopted children.

The action was brought by a 55-year-old female plaintiff who was named as a child of the wealthy deceased on her birth certificate, but was found to be not his biological child through DNA testing.Continue reading

Contested Estates, Vancouver Lawyer &Wills Variation Spouse vs. Child

Trevor Todd and Jackson Todd have handled contested estates including pursuant to wills variation proceedings for over 60 combined years

 

Hall v Korejwo 2011 BCCA 355 is a Court of Appeal decision involving a wills variation dispute between a 60-year-old adult son of the deceased, and the 65-year-old surviving common-law spouse.

The deceased was estranged from both of his children for most of his life.

Shortly before his death in 2008, he repaired his estrangement with one of his sons, but remained estranged from the other.

His will stated that he had already provided for his other estranged son, in addition to him having inherited most of his mother’s estate, to the exclusion of his brother.

The deceased estate was worth approximately $438,000.

In his will he left $43,000 to various family members, $10,000 plus a car to the plaintiff son, and the residue of the estate to his common-law spouse of 4 years.

The 60-year-old son was unable to work by reason of disability, had $90,000 in assets, and limited income.

The 65-year-old common-law spouse had no assets and limited income.

The trial decision is somewhat unusual in that the judge increased the plaintiff’s award by an additional $10,000, with a life estate in the residue to the common-law spouse, and a gift over to the plaintiff in the unlikely event he should survive her.

The Court of Appeal allowed the appeals of both the adult plaintiff and the common-law spouse.

The will was varied to give the plaintiff son a total of $60,000, the $43,000 to family members was left unchanged, and the residue of the estate was given to the common-law spouse.

The court gave a clear statement as to the legal obligation of the deceased to provide for his surviving common-law spouse. The decision at paragraph 33 and 34 also quotes from the leading decision of the Supreme Court of Canada, Tataryn v Tataryn (1994) 2 SCR 807

The court considered whether the provisions of the Estate Administration act has any direct role to play in concerning what is adequate just and equitable under section 2 of the Wills Variation act.

The court concluded that the Estate Administration act merely represents the default position when there is no will and the testator’s wishes are unknown. They therefore cannot directly affect the considerations that govern applications under the Wills Variation act, when the testator’s intentions are clearly set out in the will, and the court is entitled to consider a range of options in judging whether it should defer to testamentary autonomy.

Rectification of Error in Will Refused

rectification 2Rectification of Error in Will Refused By Ontario Court of Appeal

Robinson Estate v Robinson 2011 CarswellOnt 5819 once again demonstrated the limited jurisdiction that exists in the courts to remedy a mistake and omission made in the deceased’s will, even by the drafting lawyer.

The deceased testator executed 2 separate wills, one was to deal with property held in her native Spain as well as England, and a subsequent one to deal with her Canadian property.Continue reading

“Gift” Set Aside – Resulting Trust Imposed on Asset

Resulting Trust

Pan v Pan Estate 2011 BCSC 856 is an excellent example of a court case that deals between the “tug of war” in legal terms  of a gift versus a resulting trust.

In 1994 the plaintiff withdrew $450,000 from her bank in Taiwan and transferred into an account in the name of her husband in Vancouver.Continue reading

Court Has Very Limited Jurisdiction to Add Words to A Will

Rectification of Will Refused

Re Ali Estate 2011 BCSC 537, involves an application to rectify a will prior to its admission into probate.

The deceased died owning all the shares of a company operated with his brother.

The testator’s estate was valued at $9 million, including the company, which was worth approximately 4.5 million.

The testator had significant monies owing to him from the company for shareholders loans and a promissory note.

The testator left 70% of his interest in the company to his brother.

Two children of the testator, in related litigation, commenced a wills variation action.

The brother, a co-executor, applied for rectification of the will by adding the words ” including my shareholders loans and promissory notes owing to me” in defining the testator’s interest in the company.

The court dismissed the petitioner’s application to add the words.

The court discussed the interesting historical distinction between the court sitting as a court of probate, and the court sitting as a court of construction.

These two concurrent jurisdictions have historically been exercised in separate proceedings.

When ruling upon the validity of a will, the court sits as a court of probate, and when interpreting a will, it sits as a court of construction.

Different rules apply for each court.

For example, except in very restricted circumstances, the court is not permitted to review direct evidence of the testator’s intentions on a construction application.

The court in exercising its probate jurisdiction, does have a limited power to rectify the mistake in a will where the language of the will fails to express the testator’s actual intentions.

A will is only valid to the extent a testator knew and approved of its contents.

It is well-established on the authorities that before will is admitted to probate, the court may, in the exercise of its probate jurisdiction, delete words from a will that have been included without the testator’s requisite knowledge and approval.

The court concluded that the weight of authority affirms the principle that when the court sits as a court of probate, it has no jurisdiction to add words to a will.

The court stated ” that the words that the petitioner seeks to add to this will are an attempt by him, in the guise of a rectification application, to add new language to the will to accord with, or to achieve, the interpretation desired by the petitioner.”

disinherited.com agrees.

The court then to the somewhat unusual step of ordering the petitioner to set the hearing of the construction application with the affidavits containing only that evidence which is properly admissible on the construction application. The matter was to be set before the same judge.

“Unconventional Relationship” Not a Marriage Like Relationship

 

unconventional relationship“Unconventional Relationship” Held not to be Spousal as defined by marriage like in nature

E.(L) v. J.(D) 2011 BCSC 671 is an example of the strict requirement for parties to live in a marriage like relationship for at least two years preceding death, in order to qualify as a spouse and inherit on an intestacy under the Estate Administration Act.

In 2005, the Plaintiff, then 16 met BF, age 53 on an internet site for “alternative relationships”.Continue reading

Presumption of Resulting Trust Rebutted

Presumption of Resulting Trust Rebutted

Gift of House and Bank Accounts to Spouse Upheld as Gifts

In disinherited.com’s last blog, we discussed the Zukanovic v Malkoc case.

There, the court set aside various “gifts” made during the lifetime of the deceased, and found they were held in trust for the estate.

Hamilton v. Jacinto 2011 BCSC 52, although involving different facts altogether, also involved the same legal arguments of one side arguing that the asset was transferred to him or her without consideration, with the intention of gifting that asset, while the opposing party typically arguing that no intention of a gift was shown and that the asset accordingly, is held in trust for the estate.

In this decision, the court held that the transfer of various assets to his 2nd spouse, after the death of his wife of 59 years, was intended by the deceased to be a gift to his new spouse, and that he was competent, and free of undue influence to do so.

In 2003, the plaintiff’s elderly father, a Washington state resident, purchased a house in British Columbia in joint names with the defendant, and opened joint bank accounts with her,using assets of a Washington state trust, of which he was the sole trustee and beneficiary. She contributed no monies to the bank accounts or the house.

After the father’s death in 2004 at age 84, the plaintiff children commenced a court action to set aside the house and bank transactions.

The plaintiffs argued that the defendant held the property in trust for their father’s estate.

The evidence however showed that the father knew what he was doing and acted freely.

The court found that the presumption of resulting trust was rebutted, that there was no undue influence.

Accordingly the action was dismissed in favor of the defendant spouse.

The two contrasting decisions indicate how difficult it can be even for very senior estate specialists such as at disinherited.com, to predict the outcome of such court actions.

The next blog will show how the court penalized the plaintiffs with an award of double costs for failure to accept an offer to settle.