Wills Variation: Four Daughters Win Against Sons

4 B.C. sisters victorious in court after parents left them tiny share of M estate

Written by Bethany Lindsay | Published on CBC.ca

Judge changes wills after  Litt parents left 93% of their estate to 2 sons and $150,000 to each of four daughters.

When they died three years ago, Nahar and Nihal Litt left behind an estate valued at more than $9 million. They willed 93 per cent of that to their two sons, leaving their four daughters to split what was left.

That’s despite the fact that the daughters, now in their 50s and 60s, took on most of the work of caring for their aging parents in the years before they died, according to a B.C. Supreme Court judgment. They also helped build their parents’ fortune, working on family-owned farms beginning when they were children.

And so the sisters decided to contest their parents’ will in court, arguing that their parents discriminated against them based on outdated traditional values, the judgment says.


This Richmond farm helped build the Litt family’s fortune. (Farms in B.C.)

When they died three years ago, Nahar and Nihal Litt left behind an estate valued at more than $9 million. They willed 93 per cent of that to their two sons, leaving their four daughters to split what was left.

That’s despite the fact that the daughters, now in their 50s and 60s, took on most of the work of caring for their aging parents in the years before they died, according to a B.C. Supreme Court judgment. They also helped build their parents’ fortune, working on family-owned farms beginning when they were children.

And so the sisters decided to contest their parents’ will in court, arguing that their parents discriminated against them based on outdated traditional values, the judgment says.

“One of the reasons that they wanted to pursue the claim was not just out of self-interest, but so other South Asian women in the same position would also have the courage to do so,” their lawyer, Trevor Todd, told CBC News.

This week, Justice Elaine Adair agreed to redistribute the Litt estate, granting about $1.35 million to each of the sisters: Jasbinder Kaur Grewal, Mohinder Kaur Litt-Grewal, Amarjit Kaur Gottenbos and Inderjit Kaur Sidhu

That adds up to 60 per cent of the family fortune, much higher than the $150,000 each they were initially promised.

Their two brothers, Terry Mukhtiar Singh Litt and Kasar Singh Litt, will split the remaining 40 per cent, or about $1.8 million each.

The brothers both agreed that their parents had failed to meet their “moral obligations” to their daughters, though they argued in court for larger inheritances for themselves. Terry Litt testified that he had tried to convince his mother and father that the wills were unfair, but he was unable to persuade them to make changes.

‘The hurts were deep’

Adair’s judgment lays out more than five decades of history in an immigrant family whose frugal lifestyle and hard work helped build a multi-million-dollar legacy. It reveals a network of complicated family relationships touched by resentment that led one daughter to become estranged from her parents for 20 years.

The Litts arrived in B.C. from India in 1964, when their children were between the ages of three and 14 years old, according to the judgment.

Dad Nahar found a job at a sawmill, and the family gradually began acquiring real estate, including a number of farms.

“As soon as they were old enough, the siblings were expected to work during the summers alongside their mother, picking fruit and vegetable crops,” Adair wrote.

The Litts owned a number of farms in Richmond and the Fraser Valley over the years. (Farms in B.C.)

The difference, according to the daughters, is that they were expected to take care of household chores, while their brothers were not. They testified that, as girls, they were treated as less valuable.

“There is little doubt that Nihal, over her lifetime and without justification, treated her daughters very cruelly. Jasbinder and Mohinder, the two oldest, were particular targets,” Adair wrote.

“The hurts were deep and are still keenly felt.”

Despite that cruelty, the two eldest daughters took on most of the work caring for their ailing parents in the years before they both died in the span of two months in early 2016.

‘They consider it a victory’

Today, the siblings all have their own families and are financially independent. Even before they receive their inheritance, some of them have assets valued in the millions of dollars.

But Adair wrote that the parents’ wills were not adequate to support their daughters.

B.C.’s Wills, Estates and Succession Act gives judges wide leeway to make drastic changes to a will to make sure there’s a “just and equitable” distribution to someone’s surviving spouse and children. At the same time, they’re expected to consider the “testamentary autonomy” of the dead person — in other words, a person’s right to decide who gets their money.

Todd said he believes the judge did a good job of balancing those two concerns.

“The clients are very happy with the result. They consider it a victory,” he sai


Publication Bans

Publication Bans | Disinherited Vancouver Estate Litigation

Toronto Star Newspapers Ltd v Sherman Estate  2018 ONSC 4706 involved the sensational murder of two wealthy Torontonians where the courts weighed the deleterious effects of applying publication bans to protect files. The court concluded that any deleterious effect of a publication ban was substantially outweighed by the salutary effects on rights and interests of victims, beneficiaries and trustees of the estate.

The court ordered that the estate files be sealed for two years.

Journalists had sought access to the estate and investigatory files but were advised that the files were not available for viewing, so the newspaper brought application seeking variation or termination of protective orders and full and ceiling of the court files. Those applications were dismissed for a period of two years.

The case reviewed the principles applicable to win the courts will grant confidentiality orders:

1) The principle of open courts is inextricably tied to the rights guaranteed by section 2 of the Charter of Rights.- Sierra Club of Canada v. Canada (2002) 2 SCR 522;

2) The fundamental question for a court to consider in an application for a publication ban or confidentiality is whether, in the circumstances, the right to freedom of expression should be compromised and the analytical approach to the problem must be tailored to the specific rights and interest engaged in the case- Sierra Club at paragraphs 37 – 38;

3) The basic purpose of the court’s approaches to ensure that the judicial discretion to deny public access is exercised in accordance with charter principles;

4) A confidentiality order (publication ban) should only be granted when such an order 1) is necessary in order to prevent a serious risk to an important interest because reasonable alternative measures will not prevent the risk, and 2) the salutary effects of the confidentiality order outweighs it’s deleterious effects, including the effects and the right to free expression in the public interest in open and accessible court proceedings;

5) Stated differently public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. Toronto Star Newspapers LTD v Ontario (2005) 2 SCR 188;

6) These principles apply to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings, there being no fundamental distinction to be drawn between seeming orders, publication bans rather confidentiality orders made in the context of court proceedings, both criminal and civil;

7) The test is not whether or confidentiality should be issued in order to err on the side of caution or out of an abundance of caution- the test is whether it is necessary to do so R. v Kossyrine & Vorobiov 2011 ONSC 6081

The court concluded that the burden to be satisfied by the party seeking a confidentiality order is a high one in the court must guard against any tendency to treat such applications as routine.

The open court principle is a fundamental element necessary to maintain and nourish public confidence in our courts and their integrity. Loss of that confidence when undermined the public’s willingness to accept the legitimacy of the mandate of judges to dispense justice on their behalf. From there lies a slippery slope to the sort of society no Canadian wishes to bring about.

Interview: Ask & Answered With R. Trevor Todd

Interview: Ask & Answered With R. Trevor Todd

Trevor Todd was recently interviewed for an article in the Verdict (issue 155). View the original article here.


(1) the Verdict: With regard to both law clients and the legal system in general, what does the word justice mean to you?

Trevor: Justice. As an estate litigator I view the concept of justice through the courts of equity that my disinherited clients actually deserve, merit, and are entitled to share in the estate that has been created by typically their parents. Typically my disinherited clients are victims from a dysfunctional family where they were badly treated. I am very grateful that British Columbia has the provisions of the wills variation act ( now section 60 WESA) enshrined so that there is a moral obligation on behalf of parents to provide for their children and a legal obligation to provide for their infant children. The Canadian legal system certainly is not perfect in providing justice, but I venture to say, it is probably one of, if not the very best legal systems in the world.


(2) What were among the main reasons you chose to pursue a career in the legal profession?

The main reason I pursued a career in the legal profession is that my father had the aptitude of a lawyer but did not have the opportunity to attend law school. I remember as a child wanting to be a lawyer and recall completing my application to law school with the simple words “I have always wanted to be a lawyer”.


(3) When it comes to the legal professional, what is just as important to you now as it was 43 years ago at the start of your career as a lawyer?

I like to think that anyone who pursues a career in law is first and foremost guided by the overall principle of trying to help people with their legal problems. Throughout my career I have always obtained my greatest satisfaction in bringing a case to a satisfactory conclusion, and hopefully having attained the desired goal of my client.


(4) Being asked to represent an individual on a personal legal matter is an honour and a tremendous responsibility. What advice would you impart to new lawyers with respect to how they should approach meeting a potential client for the first time?

My advice to new lawyers with respect to how they should approach meeting a client for the first time is to listen carefully and ask probing questions to ensure that the client has merit to their claim before accepting their retainer. I urge lawyers to learn to say “no” much more than they typically do when it comes to accepting the retainer of every possible client. For example, if the client has previously retained more than two lawyers ( without valid reason such as retirement) , then I urge caution in accepting that potential client as the red light might be that the client is unreasonable. This is particularly the case when accepting contingency fee arrangements as in my view, it is the lawyer that bears most of the risk and not the client.


(5) Your practice has changed over the years, perhaps most notably by the fact that these days your work is exclusively focussed on estate litigation. In which way does your approach to work today differ significantly from your approach during your first 10 or so years in the practice of law?

When I started practicing law in 1974 I had an extremely general practice where in the same day I might do and impaired driving, a commercial lease and an uncontested divorce. In retrospect, I believe that most lawyers then did not do a particularly good job if they maintained such a practice, which I believe most did. Approximately 25 years ago I took a number of courses on focusing your practice and realized that specialization is not only what the public wants, but leads to a far more financially successful less stressful practice, as well as greater peer recognition. Coincidentally, at about the same time I had a significant estate litigation trial, which made the front page of the province and Vancouver Sun. It was an epiphany for me in terms of what I wished to do exclusively in my practice.


(6) What are among the most difficult aspects of your workweek, be it logistics or otherwise (e.g. time management, commuting, scheduling)?

I no longer have any difficult aspects in my work week as many years ago I developed the concept that I would strictly control my practice as opposed to allowing the practice to control me. I have stringently restricted the number of cases that I take each year to a very manageable number and only take cases that I think are of merit, interest and financial reward. I have noted that most lawyers are victims of overwork with too much stress and non-appreciative clients- I consider that their practices are largely examples of “the tail wagging the dog”.


(7) What are among the most challenging aspects of the cases you take on regularly?

The most challenging aspects of the cases that I regularly take are that they are often referred to me by other lawyers as being difficult and requiring expertise. I have particularly enjoyed the cases where it has been necessary to try “pushing the plaintiff’s envelope” by trying typically equitable remedies to overcome difficult fact situations.


(8) “Money Matters” is the theme of this edition of the Verdict. Money can be – and nearly always is – a challenging topic for anyone, regardless if we’re talking personal or professional. You are deep into a career that uniquely fuses personal and professional needs and obligations – with money, assets and family at the heart of it all. The Wills, Estates and Succession Act (WESA) is now eight years old (Royal Assent on October 29, 2009), has it been a great eight for the people of BC?Oversimplification aside, are money matters better (closer to just) for citizens who require legal assistance after the death of a loved one?

WESA came into effect on March 31, 2014 and comprised a great number of changes from previous estate statutes. Initially the provisions of the wills variation act that allowed an adult independent child to contest a will were not to be included in the new legislation. I (amongst others) strongly lobbied against this and spoke to a number of bar associations and wrote a number of articles to the effect that this provision should be kept in the new legislation. Atty. Gen. Oppal in his wisdom, fought the cabinet against this change, and prevailed. His rationalization amongst others was that many Southeast Asian women would be disinherited and would have no legal remedy. This is a very significant factor in that British Columbia is the only province in Canada, and one of the few places in the world other than New Zealand that allows an adult independent child to contest a will on the basis that they were not adequately provided for by their parents. The other significant change of WESA is the extreme relaxation of the rules relating to the proper execution of a will. One of the first cases in this regard was a court allowing a suicide note (unwitnessed of course) to be declared a valid will under the curative provisions of the act.


(9) Many of today’s legal professionals contend that law school did not prepare them for some of the biggest or most important aspects of managing a law practice. What is one practical everyday thing you learned from scratch, after earning your law degree?

The biggest complaint I have with respect to law school is that while they teach the student to analyze case law quite well, there was, and I believe still is, no training whatsoever with respect to the management of a law firm. Most law professors have never practiced law. Probably the biggest change that I have noted in the profession is that for approximately the first 20 years of my practice law was considered a “noble profession “whereas the reality is that it is increasingly “big business” on an worldwide basis. What I quickly learned after entering practice is that each lawyer is expected to have business skills, including marketing, and to be productive in the monetary sense. Many of the brightest students weren’t necessarily good at these skills. I have learned that personality and practical common sense are usually more valuable in the practice of law than high intellect.


(10) If you chose another career path, what would it likely have been, and which careers are among the ones you would consider nicely suitable to your skills and aspirations?

With respect to alternate career paths other than law, most of my classmates had a political science undergraduate degree. I recall writing an aptitude test just prior to entering law school and my main aptitude was that of the social sciences professor. In latter years, I have realized that I would probably have pursued a Masters in business administration If I had been unable to be accepted in law school. One of the things I have liked about law as a career, that equally applies to an MBA degree is the number of diverse avenues that can be followed if one is so inclined.


(11) What do you consider to be among the greatest traditions of life as a lawyer?

I consider one of the greatest traditions of life as a lawyer is the camaraderie of the profession throughout the world. I travel a great deal and have noted that no matter where I am, there is much in common with practitioners in the foreign country.


(12) You’ve been a member of TLABC from the early days of this association. You served a year as TLABC’s president and you were a dedicated member of the board of governors for well more than a decade. Aided by your experience to date and the benefit of hindsight, what do you regard as a significant way in which things have changed for lawyers who chose to join this professional association? Put another way, generally speaking, are professional associations and memberships more relevant than ever or are most of today’s professionals inclined to keep to themselves with regard to their practice issues?

I can still recall attending a TLABC seminar in 1982, and thinking that was by far the best, most practical seminar I had ever attended. The American attorneys who spoke were high-powered and inspirational. The course was so different and more practical than the CLE courses that I had taken. I immediately joined the fledgling association and got on the executive. Our first meeting was in Ian Sisset’s kitchen as TLABC did not have an office until my presidency in 1987. I have been writing an estate column for the Verdict now for approximately 22 years. I have urged a great number of young lawyers to get involved with TLABC and consider it to be one of the very best professional legal associations. With the decline in mentoring over the years I think it is more important than ever for lawyers, and in particular young lawyers to join such professional associations.


(13) Whether far back in world history or in modern times, who are some of the lawyers and laypeople that come to mind when you think of people you admire, and what do you find most admirable about them?

Lawyers and laymen I admire in world history are Margaret Thatcher and Mikhail Gorbachev for their strong individual beliefs that were contrary to the prevailing thought of their time and circumstances and who largely helped to end the Cold war that persisted throughout most of my life.


(14) If you could have been counsel on any case in world history – in any field of law – which case would it have been, and what is it that draws you to it? Additionally, which lawyer or lawyers in history do you think you would have enjoyed most working against or alongside?

If I had been counsel on any case in world history, I would choose being a prosecutor at the Nuremberg war crimes trials. I greatly admire the prosecutors who have participated in trials against genocide. Such work appeals to both my keen interest in world history as well as huma rights justice.


(15) Featuring law as a central theme or as a compelling backdrop to a story, which books or films are at the top of your list of favourites?

I have never been attracted to television portrayals of the practice of law as Perry Mason and LA Law gave very false impressions to the general public as to what the profession is truly like. On the other hand I admit to being a John Grisham addict and have read every one of his books, including his few non lawyer ones.


(16) Which mantra, quotation or expression do you find particularly inspirational, one that is powerful enough to guide you through the toughest of days?

The quotation that helped me the most in the development of my estate litigation practice was back when I had one case and was wondering when the next one might come in the door. It was the very early 1990s, and when I bemoaned the fact of that I had grave concerns about making a success of it, a friend stated” Rome wasn’t built in a day”. That quote somehow caused me to realize that perseverance in the pursuit of something that you really want will invariably prevail.


(17) Trevor Todd – if all of your arguments were made and your law books were closed forever, where would you be living and what would your life be like? Alternatively, describe an ideal non-work day in which you are living life exclusively on your terms.

At this time I cannot come to grips with what it would be like to not practice law anymore. Many of my contemporaries have retired or are thinking about it. My attitude remains that I will do it until “I drop,” If I did have to describe a non-workday in which I was living exclusively on my terms, it would probably involve adhering to the principles set out in the book “ The Four Hour workweek” and realizing that I could be living in a foreign country in the lap of luxury, working only as and when I wanted, and enjoying life on my own terms.


(18) At this stage of your career – with the sum and strength of 43 years of experience as a lawyer – what can you, legal professional, say for certain about law?

After 43 years of practice, I can state that there will always be a need for lawyers in our society, but as a profession, It is threatened not only by an overabundance of lawyers, but technology such as artificial intelligence. The lawyer of the future will need to be highly specialized and able to adapt to radically changing social situations.


(19) Today, with the benefit of your life experiences to date, what can you – Trevor Todd – say for certain about life?

With respect to life experiences, I think the quote from Forest Gump that “life is like a box of chocolates- you never know what you’re going to get” is most apt. As far as certainty goes it is limited to death and taxes.

Predatory Marriage

Predatory Marriage

Probably every experienced estate litigation lawyer has had court actions involving a predatory spouse. The phenomenon is disturbing and increasingly common in our society as individuals both live longer and accumulate more wealth.

In simple terms, predatory spouses take advantage of elderly victims and assume control of their financial affairs and often culminate in a secret marriage. The consequences for the victim and their immediate family are traumatic and significant.

Predatory marriage refers to a marriage ceremony entered into for the singular purpose of exploitation, personal gain and profit. Love and personal commitment are simply not part of the equation. The relationship typically begins when a caregiver persuades a vulnerable person to marry. The victim is usually elderly, dependent, vulnerable and suffering from significant cognitive impairment.

The marriage ceremony is usually secretive and the victim is thereafter closeted away from their loved ones as the predator takes control and management of the victim’s financial affairs.

Historically, the courts took an overly simplistic approach to marriage in that they equated marriage to a simple contract requiring minimal mental capacity. In other words, “any idiot can get married”.

Ironically, perhaps, if the contract to enter marriage is so simple, then why does a significant percentage of the legal profession engage in full-time work trying to extricate the parties from the supposedly simple contract?

The Law

One of the early leading cases is from 1885. Durham v. Durham 10 P.D. 80 provided a quote that has been frequently adopted by Canadian courts: “the contract of marriage is a simple one, which does not require a high degree of intelligence to comprehend”.

It is only in recent years that the courts have taken a more realistic approach to the level of mental capacity required to enter into a valid marriage. The law may still be described as being in a state of flux, and the courts typically still view the capacity to marry as a lower threshold than the capacity to manage one’s affairs, make a will, or instruct counsel.

The leading case in British Columbia is Wolfman–Stotland v. Stotland 2011 BCCA 175, which set out the hierarchy of capacity required for various decisions, holding that:

  1. separation is the simplest act, requiring the lowest level of understanding;
  2. divorce, while still simple, requires a bit more understanding in that it requires the desire to remain separated and no longer be married;
  3. American courts have recognized that the mental capacity required for divorce is the same as that required for entering into marriage;
  4. financial matters require a higher level of understanding than marriage;
  5. the capacity to instruct counsel involves the ability to understand financial and legal issues, which puts it significantly higher on the competency hierarchy;
  6. the highest level of capacity is that required to make a will.

A lack of mental capacity to marry will render a marriage void ab initio (as if it had never occurred) per Ross-Scott v. Potvin 2014 BCSC 435.

The law presumes that an adult has capacity unless the contrary is established. The onus of proof for establishing lack of mental capacity to marry is on the person asserting the same.

3 Recent Cases Involving Predatory Spouses

1. Juzumas v. Baron 2012 ONSC 7220

This case involved a predatory marriage where the victim, Mr. Juzumas, was an 88-year-old vulnerable male who was mentally incompetent. The court set aside a wedding and a transfer of his property to the predator’s son on the basis of the doctrines of undue influence and unconscionability.

Ms. Baron, the predator spouse, was a 64-year-old widow who had been married previously 6 to 8 times and had a history of caring for older men with the expectation of receiving an inheritance through their estates. She befriended Mr. Juzumas and promised to live together and care for him. He married her and signed a will naming her as the executrix and sole beneficiary.

After the marriage ceremony Ms. Baron continued to live in a separate apartment with her 23-year-old son and only visited her purported husband for several hours a week. She became increasingly abusive controlling and domineering towards Mr. Juzumas.

Without her knowledge, Mr. Juzumas ultimately changed his will to leave Ms. Baron only a modest bequest of $10,000. When she found out she embarked on a campaign to ensure that she received Mr. Juzumas s’s home. Through the assistance of a lawyer, an agreement was drafted that transferred the property to Ms. Baron’s son and Mr. Juzumas was left with a life interest in his home.

At the time of the transfer, Mr. Juzumas was 91 years of age, vulnerable, in failing health and completely dependent on and dominated by his abusive spouse. He lived in constant fear of being abandoned to a nursing home, with which Ms. Walker continually threatened him.

He commenced a court action to set aside the transfer of the property and sought a divorce and dissolution of the marriage.

The court set aside the transfer of land on the basis of the doctrines of undue influence and unconscionability, both of which may be used “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement”.

The court found that there was actual undue influence by reason of the fact that Ms. Baron threatened an elderly dependent with abandonment to a care home.

The court also found presumptive undue influence by reason of the fact that she was a caregiver who had the ability or potential to dominate the will of the other, whether through manipulation, coercion, or outright but subtle abuse of power.

It was incumbent upon the wife to rebut the presumption of undue influence and demonstrate that the transaction was an exercise of independent free will, which she was completely unable to do.

The court also relied upon the doctrine of unconscionability which gives the court the jurisdiction to set aside an agreement resulting from an inequality of bargaining power. The onus is on the defendant to establish the fairness of the transaction.

2. Hunt v. Worrod 2017 ONSC 7397

The facts of this case are perhaps as egregious as they possibly may be with respect to predatory marriages.

As a result of a catastrophic head injury, the 50-year-old Mr. Hunt had been in a coma for 18 days and hospitalized for four months. The injury left him with what doctors described as a wasted, shrunken brain.

Three days after leaving hospital, Mr. Hunt was spirited away by the defendant Worrod, a former girlfriend, for a secret wedding that gave her legal rights to his future wealth and his landscaping business, home and expected $1 million personal injury settlement.

Mr. Hunt’s concerned children contacted the police, who located him in a motel just hours after the purported wedding took place. His sons had been made his legal guardians by court order.

Mr. Hunt never lived with his purported wife after the marriage. Before the accident he had had an on-again, off-again relationship with Ms. Worrod and had concluded their relationship with a separation agreement that resolved all of their property and legal obligations to each other. In fact, he had been required to contact the police to remove her from his residence when the relationship ended.

It was noted that Ms. Worrod was an extreme alcoholic who had hit Mr. Hunt when drunk and was generally unable to act and care responsibly for herself while intoxicated.

Evidence at trial from various medical experts was conclusive that Mr. Hunt was intellectually devastated with serious physical and cognitive issues that made him increasingly malleable and easily influenced through emotional stimulation, including sexual relations.

The medical evidence was consistent that Mr. Hunt suffered a classic case of frontal lobe syndrome that limited his ability to reason abstractly, problem solve, make decisions or consider alternatives, and that he lacked insight and self-awareness. His cognitive limitations severely limited his ability to understand the consequences of his behaviors and actions.

All of the various medical experts who testified made it clear that Mr. Hunt did not have the capacity to marry. As stated in Ross-Scott v. Potvin 2014 BCSC 435:

“A person is capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and duties and responsibilities it creates. The assessment of a person’s capacity to understand the nature of the marriage commitment is informed, in part, by an ability to manage themselves and their affairs. Delusional thinking or reduced cognitive abilities alone may not destroy an individual’s capacity to form an intention to marry as long as the person is capable of managing their own affairs.”

The court concluded that Mr. Hunt did not have the requisite capacity to marry as he did not understand the nature of the contract he was entering into and the responsibilities the contract created.

The marriage was declared void ab initio and Ms. Worrod was ordered to have no further contact with Mr. Hunt.

3. Devore-Thompson v Poulain 2017 BCSC 1289

The deceased, Donna Walker, suffered from Alzheimer’s disease and in September 2010 was declared by the court to be incapable of managing her financial and legal affairs because of her dementia. She had moved into a care facility in September 2010, where she remained until her death in late 2013 at age 74.

Ms. Walker had purportedly married the defendant Poulain in June 2010 but they never lived together, either before or after the marriage ceremony.

The overwhelming evidence of several lay witnesses, as well as a treating geriatric psychiatrist, was that Ms. Walker had lacked mental capacity to marry in 2010.

For example, one lay witness testified that Ms. Walker had told her that she did not know where she was married, who married her, or even why she married the defendant. Once again, the marriage was done in secret and there were no friends or family at the wedding service.

There was one photograph taken at the wedding ceremony which clearly indicated that Ms. Walker’s facial expression was vacant.

After her first marriage ended, Ms. Walker had always told those close to her that she never wished to marry again. She was very close to her family and friends but never expressed to a single witness that she was in love with the defendant, that she knew anything about him, that they had any kind of future together, or that she wanted to get married and spend the rest of her life with him.

The evidence of the treating geriatric psychiatrist was most significant, in that she testified as follows:

  1. Ms. Walker did not understand reality, absorb information or make decisions based on the correct facts, and that she had no insight or judgment.
  2. On learning of the purported marriage, the psychiatrist had made an urgent referral to the Public Guardian and Trustee stating that Ms. Walker was incapable of entering into a marriage relationship as she was moderately to severely demented and had significant impairment of executive function. She also noted that Ms. Walker was at significant risk for abuse as a vulnerable adult.
  3. Ms. Walker did not have a grip on reality but insisted that she was fully independent for self-care and household management, despite much evidence to the contrary.

The defendant testified that he had no concern about Ms. Walker’s mental capacity.

The court had no difficulty in finding the defendant to be a completely untruthful witness who was motivated by a desire for financial gain from Ms. Walker’s assets.

The court concluded that Ms. Walker’s mental capacity had diminished to such an extent that she could not have formed an intention to live with the defendant or to form a lifetime bond. At the time of the marriage she did not understand what it meant to live together with another person, and could not know even the most basic meaning of marriage or understand any of its implications, including who she was married to, in the sense of what kind of person he was, what their emotional attachment was, that they would be living together, and fundamentally how marriage would affect her life on a day-to-day basis in the future.

Accordingly, the court found that Ms. Walker did not have the capacity to marry the defendant and the marriage was declared void ab initio. Two wills done by Ms. Walker in 2007 and 2009 were also set aside by reason of her lack of capacity.


The advent of a rapidly aging population with significant wealth will certainly lead to a rise in the increasingly common phenomenon of predatory marriage.

The legal issue of mental capacity to enter into such a marriage will increasingly become more relevant and litigated.

The legal test for capacity to marry is in a state of flux. It will undoubtedly continue to evolve as more instances of predatory marriage are brought before the courts and they become more accustomed to recognizing such predatory behavior.

To some extent I believe it is a situation where the courts need to be more cognizant of the significant number of predators in our society who prey upon the infirm and vulnerable.

The concept that only a low level of mental capacity is required to enter into a marriage is an anachronism that needs to be corrected, given the complexity of current family law, particularly as it relates to property entitlement to the assets of one spouse.

At present, to succeed in having a purported predatory marriage set aside, it is necessary to prove on the balance of probabilities that the victim lacked mental capacity to understand the nature of the marital contract, which typically requires both the testimony of lay witnesses and medical evidence of lack of capacity.

The Juzumas v. Baron decision is significant in that the court also invoked the doctrines of undue influence and unconscionability in setting aside the purported marriage. Hopefully it will be followed by other court decisions as useful tools to remedy a wrong suffered in the context of a predatory marriage and financial abuse.

Jerry Lewis and Wills Variation

Jerry Lewis and Wills Variation

In British Columbia, Jerry Lewis’s six disinherited children would have a wills variation claim under Section 60 of WESA.

The news today reported:

When comedian Jerry Lewis died from heart failure in August at the age of 91, as it turns out, he left the majority of his estranged children nothing — and rather proudly.

People obtained his last will and testament, and discovered that Lewis cut out all six of his children with his first wife Patti Palmer, who are therefore set to inherit nothing.

The will, which was executed in 2012, reads: “I have intentionally excluded Gary Lewis, Ronald Lewis, Anthony Joseph Lewis, Christopher Joseph Lewis, Scott Anthony Lewis, and Joseph Christopher Lewis and their descendants as beneficiaries of my estate, it being my intention that they shall receive no benefits hereunder.”

Lewis and Palmer were married for 36 years from 1944 to 1980. Their sixth child, Joseph, mentioned above, actually died of a drug overdose in 2009.

However, Lewis remarried in 1983, to Las Vegas dancer SanDee Pitnick. As his widow, Lewis’s estate will likely be passed down to Pitnick. Second in line to inherit is Lewis’s remaining child, 25-year-old daughter Danielle, whom he adopted with Pitnick and who was also working as Lewis’s manager up until his death.

Ian Mulgrew: As if Death Weren’t Bad Enough — Fraudulent Wills

Ian Mulgrew: As if Death Weren't Bad Enough — Fraudulent Wills

Originally published in The Vancouver Sun May 4, 2017

Written by Ian Mulgrew

The B.C. inheritance-and-estate law brought in two years ago has increased the risk of forged and fraudulent wills, says a lawyer involved in the debate about its creation.

Trevor Todd, who runs disinherited.com, said the situation is worrying given that in his 40-year practice he previously saw only one forged will — in the late-1970s.

That case involved a nightclub doorman and his legal-secretary girlfriend taking advantage of the chronically drunk bar owner with a will that left everything to the bouncer. The club owner’s widow hired a handwriting expert and the case was settled out-of-court when the will was unveiled as a fake.

The old rules required that a will be in writing, signed by the testator and two witnesses, all in the presence of each other, and neither of whom nor their spouses could inherit as a beneficiary.

(The doorman used two bar flies as witnesses — the girlfriend having alerted him to the perils of signing the phoney document.)

Most forged-wills cases involve handwritten documents, known as holographs, putatively signed by the deceased with no witnesses.

Several decisions since the Wills, Estates and Succession Act (WESA) came into effect March 31, 2014, however, have allowed wills that previously would have been ruled invalid to be probated despite irregularities such as the lack of witnesses.

In one of the first post-WESA cases, (Re the Estate of Woolrich, V140043, unreported, Jan. 21, 2015), the B.C. Supreme Court found a suicide note to be a valid will.

In Re Smith Estate 2016 BCSC 350, the court granted probate to three clipped and stapled-together documents — two handwritten and the other an original funeral-arrangements brochure, all unsigned and unwitnessed.

In Re Yaremkewich Estate 2015 BCSC 1124, the witnesses signed a blank template that didn’t have attached the lists of bequests found with the will after death.

Also, they couldn’t recall if the deceased had signed the will template at the same time as they did. The judge still approved the will, including the lists of bequests.

“To date the courts have not set any limit on what type of documentation is necessary to prove a will-maker’s true intentions with respect to his or her last will,” Todd said. “It is possible, for example, that an email message might be admitted to probate as a will. Such a thought immediately conjures up the prospect of an increase in faked wills.”

The previous legislation took a very strict approach to wills, Todd explained, so any deviation caused a will to be deemed wholly or partly invalid.

For policy reasons, the government decided far greater court discretion was required to “cure” previously “defective” wills.

Passed in 2009, WESA included provisions that allowed probate as long as the intention of the testator was clear.

At the time, litigators including Todd, predicted more, not fewer lawsuits with the adoption of a significantly different conception of what could be considered a valid will.

With the public now increasingly preparing their own wills, Todd maintained, the self-help process has exacerbated the problem providing even greater opportunity for deathbed legerdemain.

“As the public increasingly prepare their own wills, all without the ‘screen’ of a lawyer testing for capacity and undue influence, it appears inevitable that there will be more forged or faked testamentary documents,” he said.

Combating a counterfeit will, he added, is difficult because bringing a charge of forgery is tantamount to alleging fraud, requires expensive handwriting experts and, if unproven, results in a heavy, special-costs award against the accuser.

“Handwriting experts require 20 to 30 handwritten signatures of the deceased, preferably originals only, which they analyze through microscopes,” he said. “Their job is often complicated by the effect of tremors, arthritis or other related afflictions that a frail or elderly will-maker may have.”

And lawyer-prepared wills aren’t a palatable solution.

“There is a great price barrier as to what people will pay professionals to prepare wills, given the availability of will kits and such on the Internet,” Todd noted.

England Considers Allowing Texts and Voicemails to Be Wills

England Considers Allowing Texts and Voicemails to Be Wills

England is considering introducing radical reforms to it’s inheritance laws that would allow text messages and voice mails to be valid wills according to an article in today’s Telegraph.

“British people will be able to use voicemail and text messages to make their wills, under a radical overhaul of inheritance laws Law Commission has branded the current legacy system outdated and recommends it be revolutionized to keep up with the digital age.

Under present laws, which date back to 1839, wills need to be written and signed by the testator as well as two witnesses in order to be valid.

The commission suggests those rules are unclear and outdated

The plans drawn up by the Commission call for the law to be relaxed to allow notes, emails and voicemail messages to be used in place of a written will.

Under the proposals, new powers would allow county and high court judges to decide on the balance of probabilities whether a recording or note is an accurate summary of a person’s wishes.

Deathbed changes of heart could even be recorded and used to overrule an existing, valid will.

The consultation document says that there are strong arguments that it should apply not only to traditional written documents, but also where testators express their testamentary intentions in an electronic format, as well as in an audio or audio-visual recording.

But the Commission admits that the changes could add to family arguments as possible beneficiaries scour their relative’s communications for evidence that they had changed their mind.

The consultation adds: A person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write.

On the other hand, the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives.

“They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a will on the basis of a dispensing power.

The powers already exist in Australia, Canada, South Africa, and several US states.

Law Commissioner Professor Nick Hopkins said: Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts cannot act on it.

But experts urged caution amid concerns that older people could be pressured into last-minute changes of heart.

There are a number of ways to get a will drafted. One option is through a solicitor or use a will writing service.

The fee for using a solicitor will vary depending on the firm and the complexity of the will.

Caroline Abraham, charity director of Age UK said: Whilst we welcome this public consultation, any proposed changes must not create further barriers for people who wish to plan ahead, and ensure that older people are able to make their own decisions wherever possible, free from pressure and coercion.

Elizabeth Neale, partner in the private wealth team at law firm Bircham Dyson Bell, cautioned that weakening the current strict rules could have worrying implications for vulnerable people.

She added that there could be pressure on people to write something down or make a voicemail.

Professor Hopkins added: Any new law would protect vulnerable testators against possible undue influence, and certainly if there was any suggestion that that had been exercised, the court isn’t going to use the dispensing power. But this is a consultation, so if anyone has those concerns, they should let us know.

The proposals also suggest changing the law about mental capacity – to  make it easier to assess whether someone with dementia is able to make a will.

The current law dates from an 1870 case which provides when someone is making a will that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties that no insane delusion shall influence his will in disposing of his property.

It suggests that the Mental Capacity Act, which is currently used to decide whether someone is capable of making a decision for themselves in other contexts, be used instead.”

Elder Abuse- Red Flags

Signs Your Senior Loved One is a Victim of Elder Abuse

The following article on signs of elder abuse  is reprinted with the permission of Sally Perkins , an American former home care and hospice manager.

Red Flags That Your Senior Loved One is a Victim of Elder Abuse

If only we lived in a world where people always responded to vulnerability with compassion and care. Unfortunately, elder abuse happens. Its hard to know how common it is, as researchers suspect that only about one in 14 cases ever get reported. The abuse can come at the hands of family members, hired caregivers, or from staff members in an assisted living or nursing home.

Keep in mind that many injuries and seemingly abnormal behaviors in seniors are common results of aging. Try to avoid seeing the possibility of abuse in every little behavioral change or scrape that you notice, but do be on the lookout for signs that could point to a larger issue.

Here are some of the most common symptoms that occur.

Frequent unexplained bruises

A bruise now and then is normal. You’ve probably got one somewhere on you right now and they occur more frequently in seniors due to their skin becoming thinner. If your loved one shows what seems to be an excessive amount of bruising and you have a hard time identifying a cause for them, then it’s worth starting to pay more attention.

Sprains or broken bones

As with bruising, these aren’t uncommon injuries for seniors to experience. Yet if they experience them a lot and don’t seem to have a good explanation for what happened, or seem uncomfortable providing an explanation, then you may have a bigger problem than typical aging-related clumsiness.


Cigarette burns are harder to obtain by accident and very likely point to elder abuse. Burns that appear to be caused by an iron are another serious indicator, as are burns likely caused by hot water. Â

How to Tell the Difference Between Abuse and Accidents

This is the part that’s a little trickier. Accusations of abuse are a big deal, so you don’t want to call the authorities on a family member or paid caregiver simply because your loved one is prone to falls or tends to burn themselves in the kitchen. On the other hand, of course you don’t want them to be stuck suffering abuse with no help.

There are a couple of signs that will help you gauge when injuries are intentional.

Conflicting Accounts of an Injuries Cause

If your loved one can’t seem to keep their story straight about how they got that burn, or if they seem uncomfortable providing any story or explanation at all, that could point to attempts to cover up the abuse due to fear or dependence on the abuser. Additionally, if their caregiver offers a different story than they do, that could be cause for concern.

Injuries Occurring Frequently

If every time you see your loved one they seem to have some new burn or scratch or bruise, then start paying close attention. Maybe you just have a clumsy loved one, but maybe those injuries are coming at the hands of someone else. Start to make a note of the type of injury and the date so you’ll have an easier time recognizing patterns and figuring out if it really is occurring at an abnormal rate.

Delay in Seeking Care for an Injury

Any time a senior has an accident that causes a serious injury, the first move should be to head to the hospital for care. Even for minor injuries, whoever’s around should go into problem-solving mode to help with bandaging or any other treatment needed. If injuries aren’t healing the way they should because they haven’t been properly treated, or because treatment wasn’t sought out until well after the injury first occurred, then that’s a problem.

If this happens once you should be worried and consider if there are any other signs pointing to abuse. If it happens multiple times, then it’s very likely that abuse is occurring and it’s time to step in.

What to Do if You Suspect Elder Physical Abuse

If you’re pretty sure abuse is occurring or at least have strong suspicions of it, then you need to take action.

Get your loved one somewhere safe.

If the abuser is a caregiver living in their home, then find another friend or family member’s place for them to stay. If you think it’s a staff member at a nursing home, talk to the managers there immediately. You want to make sure your loved one doesn’t continue to suffer abuse any moment longer.

Note: If your loved one has been hurt to the point where they need emergency care, your first step should be to call 911. This will ensure they get the immediate care they need and give you the opportunity to speak with the authorities and share your concerns.

Contact the proper authorities.

The National Center on Elder Abuse  ( The Public Guardian and Trustee in British Columbia)  offers a state-by-state directory of available resources you can use and agencies to report abuse to. If your loved one denies the abuse, you may be limited in how much you can do here, but it’s worth at least getting in touch with the proper authorities to see what they recommend and can do for your loved one now.

Encourage your loved one to attend therapy.

While the stigmas of therapy have faded for most people in the United States and Canada  at this point, some seniors may still find the idea unpalatable. Nonetheless, abuse can have serious negative psychological effects, especially if the abuser is someone that your loved one trusted and loved. Do your best to convince your loved one to give therapy a try to work through their feelings from the experience.

The help of a skilled professional could not only help them better handle the pain they’re feeling from the experience, but can also help them understand how to recognize abuse if it every occurs again so they don’t silently live with it.

We will probably never live in a world where physical abuse of the elderly is entirely eradicated. But if everyone does their part to pay attention and keep an eye out for the people they love, we can do a better job of identifying the problem when it does occur and taking steps to stop it.

Your loved one has lived a long life and deserves to spend their final years comfortable. Make sure no one in their life takes that away from them.

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