RIP Partner Pete

RIP Partner Pete

It is with deep sadness that Trevor Todd and announce the passing of Partner Pete C.C on January 23, 2016 at the age of 13 after bravely fighting an incurable liver disease.

He will be missed.

Pete understood the personal problems faced by our disinherited clients and the dysfunctional world that they often come from.

Pete himself was passed over time and time again until we accepted him at 18 months of age. Apparently even his own mother seriously disliked  Pete, but we all came to love him and adopt him as not only family, but as a partner in my law practice. He was a black sheep amongst 23 fox terriers in the kennel.

Pete and I never disagreed at partnership meetings, he would enthusiastically wag his tail at my every suggestion provided then he was given a biscuit.

My clients also seemed to genuinely love Pete.

More biographical information can be read about Pete on my website .

I am taking applicants for a new associate dog with a long term view of partnership. If any of my readers have any suggestions about a great office/town house smaller dog other than a terrier, or as I came to call them ” terrorists” (I have had three fox terriers thanks). My inclination is a King Charles Spaniel, as per  Nancy Reagan’s dog.

Donations in Pete’s honour in favour of the SPCA would be greatly appreciated.

RIP Partner Pete

Trevor Todd to Chair and Speak at WESA Conference June 6

The WESA conference: Everything a trial lawyer needs to know about the Wills, Estates and Succession Act.

Opening Comments
R. TREVOR TODD,, Vancouver

View From a Very Knowledgeable Bench


Solicitor’s View: WESA-Wise Planning – The Highs and the Lows
ANDREA E. FRISBY, Legacy Tax & Trust Lawyers, Vancouver

Litigator’s View: The Floodgates Have Opened
TARA R. BRITNELL, Hamilton Duncan Armstrong & Stewart, Surrey

Where There is No Will, There May be a Way:
Do Sections 58 and 59 now Unleash a Litigation Tsunami?
MARK WEINTRAUB, Clark Wilson LLP, Vancouver

Intestacy: Update on the Major Changes to the Parentelic Distribution Scheme, Changes for Spouses & the Spousal Home
EDWARD F. MACAU LAY, Edward F. Macaulay Law Corporation, Vancouver

Family Meets WESA: What You Don’t Know Will Hurt You
CAN DACE CHO, Onyx Law Group, Vancouver JUDITH A. JANZEN, Onyx Law Group, Vancouver

Beneficiary Designations:
Which Designated Assets are now Subject to WESA Redistribution?
JOHN W. BILAWICH, Holmes & King, Vancouver

Rule on Rules and Procedure
STANLEY RULE, Sabey Rule LLP, Kelowna

Undue Influence: Shift In Burden of Proof Means More Plaintiffs Wins
R. TREVOR TODD,, Vancouver
Closing Remarks

Dysfunctional Families-The Estrangement Epidemic


EstrangementThere is a noted estrangement epidemic amongst dysfunctional families

“Family quarrels are bitter things. They’re not like aches or wounds; they’re more like splits in the skin that won’t heal because there is not enough material.”

F. Scott Fitzgerald


Estrangement is the turning away from a previously held state of affection, comradeship, or allegiance by one party to another or, alternatively, the parties to each other. The meaning has not changed much from its Latin root extraneare, to treat as a stranger.


The phenomenon of children being estranged from one or both parents has risen dramatically in recent years.


Anecdotally, after 40 years of estate litigation practice, I have witnessed the gradual erosion of the family, starting with the divorce laws of 1968 and moving through the social acceptance of common law relationships, children out of wedlock, “blended but lumpy families,” same sex marriage, and so forth. Legally speaking, the times are achanging.


In recent years, I have noted what I consider a silent epidemic of estrangement between parents and one or more of their adult children. In fact estrangement among individuals in families is far more common than most people believe.


We follow the estrangements of movie stars with glee and interest—Lindsay Lohan got a restraining order against her father; Jennifer Anniston stopped talking to her mother in 1996 when her mother wrote a tell-all book; the Tori-Spelling-of-the-week is not talking to a parent or vice versa. All those behaviours foster irreparable estrangement among various family members.


Family estrangement is found everywhere in society, from the wealthiest to the poorest. Although there is a shocking lack of statistics available on family estrangement, contemporaries in other fields, such as family counsellors, report a tremendous increase in the number of family members who no longer communicate with each other.


I believe that estrangement is so painful for the parties involved that often, they do not wish to talk about it.


Family estrangement occurs when certain family members come to an impasse in their relationship. The subject cause or causes of the estrangement, whatever they may be, are so strong, certain family members separate for a long period of time—possibly even for the rest of their lives.


There may be very valid reasons for such estrangement, such as when sexual abuse has occurred upon a child who is then not believed by either parent. A child frequently flees from the family simply to get away from one nightmare that often leads to another on the street.


Family estrangement is never easy for anyone, both within and outside the family.


In my experience as a lawyer, when estrangement occurs, the reasons are usually very understandable, troubling, and valid. The departing family member often has been very badly emotionally damaged in the relationship.


The reasons for estrangement are as diverse as the parties involved. Sometimes there was a very close relationship in the past and something happened that created distance. It may have happened slowly over time or rather suddenly, but once that distance was created, it solidified into estrangement. Alternatively, the relationship was never as close as it could or should have been and the gap just kept getting wider, until there was no relationship at all.


I couldn’t possibly list all the causes for family estrangement. Here are a few significant ones.


    1.        Intolerance

Intolerance usually manifests in the sense of disapproval of lifestyle choices such as homosexuality; marrying outside a person’s religion, race, nationality, or ethnicity; or another perceived disrespect. Intolerance can lead to stubbornness and small-mindedness when it comes to giving up a grudge or to pettiness and nastiness when it comes to forgiveness.


    2.        Divorce

Divorce arguably may be the single-most-common cause of family alienation. However amicable the divorce seemed to the parents, resentments can run deep and some children never get over it. Children may wish to live with one parent as opposed to the other. The malice of one parent turning children against the opposite parent can lead to unwarranted estrangement between the child and the “bad” parent or even both parents.


    3.        Remarriage

Remarriage, especially by the custodial parent, that creates a “blended family” has certainly caused a great number of estrangements. Distance among “first family” members and “second family” members or even a third is quite common, even when people are not cohabiting as a family unit.


    4.        Personality Disorders

Some parents never intended to be parents; they resented their children and thus were toxic parents. Living with a parent with a narcissistic personality disorder is exceedingly difficult for a child, who invariably fails to win the parent’s approval, let alone love.


    5.        Illness and Negative Behaviour

They include mental illness, drug and alcoholic addiction, and household violence.


    6.        Erosion of Self-Esteem

They include neglect, unconcern, and constant humiliations, disappointments, and putdowns.


    7.        Priorities and Time

Both parents are working and have little time for the children.


    8.        Unresolved Encounters

They include a long series of rather minor but escalating misunderstandings and overreactions and general stubbornness on both parties to make amends. While the cutting of ties between family members can be surprisingly easy, reconnecting them can be difficult if not impossible to restore.


    9.        Recurring Family Arguments

Arguments during significant holidays such as Thanksgiving and Christmas can lead to repeated hostilities, further family division, and avoidance of the special occasion in future.


 10.        The Unaccepted Spouse

When the marital partner has not been accepted by the family, it becomes awkward for everyone and easier for the estranged party to stay away.


 11.        An Estrangement Syndrome

Psychologists note that estrangement may be passed from generation to generation, due to the negative role models of the parents. In other words, if you are estranged from your parents, odds are your children will become estranged from you once they become adults.


In a dysfunctional family, the children typically do not receive enough love and care and often end up by default in competition with each other for those necessities of life.

Later, when the parents die, the competition for love may convert into one or more children taking the parents’ money to the exclusion of other siblings, out of a distorted belief they deserve the money. In the mind of the perpetrator(s), the money-grab becomes the substitute for the lost parental love.

As children, we don’t get to choose our family but, as adults, we can decide whom we wish or don’t wish to have in our lives. Even in the best of circumstances, being a member of a family is often a challenge.


To those readers who are estranged from their families, I would encourage group counselling and chat forums to deal with the pain and hopeful reconciliation and healing. That is often easier said than done as it takes a willingness on at least two sides to complete a successful reconciliation.

“Right to Die” Case Going to Supreme Court of Canada

As reported by the ,Vancouver Province today, The Supreme Court of Canada has agreed to review the country’s assisted suicide laws more than two decades after it rejected doctor-assisted dying for people who are terminally ill.

The high court announced Thursday it will hear an appeal in a case that briefly overturned the ban on assisted suicide and offered a British Columbia woman a constitutional exemption to get help in ending her life.

The B.C. Civil Liberties Association, which has argued on behalf of several ill people who claimed they wanted to die with dignity, hailed the decision.

In 2012, Justice Lynn Smith of the B.C. Supreme Court ruled the existing law was unconstitutional, but delayed her ruling for a year to allow the federal government to rewrite the statute.

Smith also granted Gloria Taylor an exemption that would have allowed her to seek an assisted death. Taylor was terminally ill with ALS, also known as Lou Gehrig’s disease.

The federal government appealed the B.C. Supreme Court decision, and the B.C. Court of Appeal overturned the ruling last October, concluding that the 1993 case that upheld the law was binding and that the lower court didn’t have the ability to overturn the decision.

The 20-year-old case that ruled against assisted suicide involved Victoria resident Sue Rodriguez.

Taylor didn’t use the constitutional exemption. She died of an infection in October 2012.

But the family of another woman, 89-year-old Kay Carter who went to Switzerland in January 2010 to end her life, is continuing the court fight with the help of the British Columbia Civil Liberties Association.

“Today we are savouring the knowledge that seriously ill Canadians are going to have the opportunity to make their plea to the court,” said lawyer Grace Pastine, who has argued the case for the association.

“There are few rights more fundamental or more deeply personal than the right to decide how much suffering to endure at the end of life and whether to seek a doctor’s assistance to hasten that, if living becomes unbearable,” she said.

Pastine said a woman named Elayne Shapray, who suffers from multiple sclerosis and is seeking the right to die, has joined the challenge to the existing law.

“She would like to be able to choose a peaceful death surrounded by her loved ones and by her family,” Pastine said. “She filed an affidavit in support of our application and explained to the court that she was tormented by the knowledge that she might become trapped in an unbearable dying process and would forfeit the ability to take her own life.”

The association applied to have the appeal process expedited, saying the case is of extreme urgency for some very ill Canadians, but the high court rejected that application, giving no reasons as is customary.

The original case included the association, Lee Carter and Hollis Johnson, the two who took Lee’s mother to Switzerland.

The trial judge skirted the Rodriguez decision by saying the Supreme Court charter rulings in recent years on the guarantees to “life, liberty, and security of the person” allowed for assisted suicide in some cases.

The judge ruled the law must allow physician-assisted suicide in cases involving patients who are diagnosed with a serious illness or disability and who are experiencing “intolerable” physical or psychological suffering with no chance of improvement.

Proponents of assisted suicide argue that the Rodriguez ruling is outdated and that society’s view of the issue has changed significantly.

However, the federal government argues that Rodriguez is the final word on the subject.

NDP Opposition NDP Leader Thomas Mulcair said Prime Minister Stephen Harper should not use assisted suicide as a political wedge issue.

Mulcair said the Supreme Court of Canada will probably send the matter back to Parliament to decide, just as it did with prostitution and Vancouver’s safe-injection site, and if that happens there’s a lot of work to be done.

“These are complex issues because people who work in health care are dealing with these issues every day of the week,” he said.

Dr. Will Johnston, chairman of the he Euthanasia Prevention Coalition of BC, which intervened in the case last fall, said he was disappointed in the top court’s decision to hear the appeal.

“The court rejected assisted suicide and euthanasia in 1993 and prevented Canada from taking a wrong turn,” he said.

“Let us hope that by clarifying the issues, the Supreme Court once again confirms the Canadian rejection of suicide and direct killing of the sick, and that we stay the course in providing great symptom control to all who need it.”

The Estate Fight Over Who Owns Sherlock Holmes Is Just the Beginning

The Estate Fight Over Who Owns Sherlock Holmes Is Just the Beginning

Sherlock Holmes? Estate fights to maintain control of famous character as copyright protections expire.

Jason Keyser, Associated Press | January 3, 2014 | Last Updated: Jan 3 6:29 PM ET
More from Associated Press

FotoliaWriter Leslie Klinger is challenging the Conan Doyle Estate, LTD over the right to use the Sherlock Holmes character in new outlets
Are writers free to depict Sherlock Holmes in new mysteries without seeking permission or paying licence fees now that copyright protections have expired on nearly all of Sir Arthur Conan Doyle’s tales about the pipe-puffing detective?

A federal judge in Chicago says yes — so long as they don’t stray into territory covered in the 10 stories still protected by copyright.

Not so fast, says the Doyle estate, which is considering an appeal this month against the ruling. Descendants of the Scottish physician and author argue he continued to develop the characters of Holmes and Dr. Watson in the later works so they should remain off-limits until the remaining copyrights run out at the end of 2022.

It means you can reprint Conan Doyle’s own stories freely but you can’t make up a new story? It doesn’t make logical sense

“It’s a bogus argument. It means you can reprint Conan Doyle’s own stories freely but you can’t make up a new story? It doesn’t make logical sense,” said author Leslie Klinger, who brought the case against the Conan Doyle Estate Ltd. to settle the matter.

With last week’s ruling in hand, Mr. Klinger plans to finish work on In the Company of Sherlock Holmes, a book of original short stories featuring characters and other elements from Conan Doyle’s work. He is co-editing the book with plans to publish this fall.

AP Photo/FileSir Arthur Conan Doyle, the author and creator of Sherlock Holmes, in 1930. Writer Leslie Klinger is challenging the Conan Doyle Estate, LTD over the right to use the Sherlock Holmes character in new tales.
If appeal judges hold it up, the ruling could lift the threat of legal action for the untold scores of writers churning out pastiches and fan fiction without permission. Most of them fly under the radar. In Mr. Klinger’s case, the estate demanded $5,000, he said.

“Whatever decision they make will essentially determine the fate of many characters, not just Sherlock Holmes and Dr. Watson, but very intricate characters such as James Bond. … What happens as copyrights expire on Ian Fleming’s original stories?” said Doyle estate attorney William Zieske.

The ruling could also weaken the value of the Sherlock franchise to the point that major publishers and movie producers could also decide to move ahead with projects without licensing deals, said Paul Supnik, a Beverly Hills, California attorney specializing in copyright and entertainment law who was not connected with the case.

“At the very least it’s going to affect the bargaining power as to what the estate can do in trying to sell it to the studio,” Mr. Supnik said.

At the heart of the dispute is whether a character can be copyright protected over an entire series of works. The Doyle estate argues that a basic element of copyright law allows for that if the character is highly delineated, as opposed to a two-dimensional cartoon-like character who doesn’t change much over time.

FileThe Adventures of Sherlock Holmes with Basil Rathbone, left.
In ruling against the estate, Judge Ruben Castillo called that a “novel legal argument” that was “counter to the goals of the Copyright Act.” The lawsuit was filed in Chicago because a literary agent for the Doyle estate is based in Illinois.

There’s no question that Holmes and Watson are highly complex characters. Conan Doyle produced a total of four Sherlock Holmes novels and 56 stories between 1887 and 1927.

Photos: Pages from a real-life Sherlock Holmes’ diary
Review: Robert Downey Jr. shines in Sherlock Holmes: A Game of Shadows
Why Sherlock Holmes is an unclassifiable character
Mr. Klinger argues that everything you really need to know about Holmes and Watson is in the novels and stories published before 1923 that are in the public domain in the U.S. That includes their family backgrounds, education and a slew of character traits: Holmes’ Bohemian nature and cocaine use, erratic eating habits, his Baker Street lodgings, his methods of reasoning, his clever use of disguise, his skill in chemistry and even his weapon of choice, a loaded hunting crop.

“Everything that the lay person would think of as being a characteristic of Holmes or Watson is in those pre-1923 stories,” said Mr. Klinger, who is also an attorney and lives in Malibu, California. “In fact, some would say you could pick up almost everything you need from the very first story.”

James Cowan/National PosThe Toronto Public Library displays Sir Arthur Conan Doyle collectables.
The other 10 stories have new biographical footnotes, including a mention that Watson had a second wife and played rugby in his youth.

But the Doyle estate says there are other significant elements in those later stories, such as Holmes’ “mellowing” personality and the shift in Holmes’ and Watson’s relationship from flatmates and collaborators to closest friends.

Thus, to depict Holmes and Watson based only on parts of the canon that pre-date 1923 would be something of an artistic crime and ignore the extent to which the characters continued to evolve, said Doyle attorney Mr. Zieske.

“That’s the essence of literature, how people change through different experiences,” Mr. Zieske said. “And to reduce true literary characters to a cardboard cutout, parts of which can be carved off, I think does literature a great disservice.”

Celebrities Estates Earn MIllions

Dead celebrityForbes Magazine’s Top earning Dead Celebrities  2012 have now been reported, once again showing that many people are worth considerably more dead than they could have ever imagined.

It is not just artists and celebrities who have this earning ability,as  almost anyone who has the potential for either fame or residual earnings can create such incredible wealth post death.

Topping the list this year is newly dead Elizabeth Taylor at $210 million, beating out the previous years top earner, Michael Jackson, whose estate income fell to a mere $145 million.

I hope his $40 billion estate claim succeeds, so as  to put him back in top earning spot hereafter.

Third spot Fat Elvis is consistent at $55 million, as is 6th spot Bob Marley at $17 million.

Marilyn has been dead for 51 years and her estate still made $10 million last year, which is about 10 million more than she ever made while alive.

Albert Einstein died 7 years before Marilyn and he also brought in $10 million for his estate.

Steve McQueen died in 1980, and his star appeal then, presently  translates into $8 million per year.

The “Downside” of Presumption of Death Orders – The Fake

Police arrest ‘dead’ banker accused of losing millions of investor dollars. A south Georgia bank director accused of losing millions of investor dollars before vanishing was homeless and worked odd jobs before his arrest earlier this week, a U.S. marshal told a federal judge Thursday.

U.S. District Judge James Graham in Brunswick formally notified Aubrey Lee Price of the charges against him. The 47-year-old was arrested Tuesday during a traffic stop on Interstate 95 in the coastal Georgia city. The judge set a bond hearing for Monday in Savannah.

Price had disappeared in June 2012 after sending a rambling letter to his family and acquaintances that investigators described as a confession. The letter said he had lost millions in investors’ dollars and planned to kill himself by jumping from a ferry in Florida.

A Florida judge declared him dead a year ago, but FBI authorities had said they didn’t believe Price was dead and continued to search for him.

The U.S. marshal said at the hearing Thursday that Price told authorities he’d been working as a migrant worker, accepting cash for odd jobs, The Atlanta Journal-Constitution reported.

An FBI spokesman said Wednesday that Price told authorities his family didn’t know he was still alive and that he had returned to Georgia to renew the tag on his truck. It wasn’t clear where he’d been for the previous 18 months.

Price was indicted in federal court in Savannah in July 2012 on charges of taking $21 million from a small south Georgia bank where he was director. He was also accused of taking many millions more from investors in his money management business. He faces federal wire fraud charges in New York.

My depression and discouragement have driven me to deep anxiety, fear and shame
Price left his home in south Georgia on June 16, 2012, telling his family he was headed to Guatemala for business, authorities have said. Two days later, Price’s family and acquaintances received letters saying he was going to Key West to board a ferry headed to Fort Meyers and planned to jump off somewhere along the way to end his life.

“My depression and discouragement have driven me to deep anxiety, fear and shame. I am emotionally overwhelmed and incapable of continuing in this life,” said a rambling confession letter investigators believe was written by Price.

AP Photo/FBIIn this June 2012 photo released by the FBI, Aubrey Lee Price is seen in Key West, Fla.
“I created false statements, covered up my losses and deceived and hurt the very people I was trying to help,” the letter said.

Credit card records showed he purchased dive weights and a ferry ticket. The ferry ticket was scanned at the boarding point, and security camera footage released by the FBI about six weeks after his disappearance showed Price at the Key West, Fla., airport and ferry terminal on the day he disappeared.

He was arrested Tuesday when Glynn County sheriff’s deputies pulled over a 2001 Dodge on the interstate because they thought its window tint was too dark, Sheriff E. Neal Jump was quoted by the Journal-Constitution as saying. Deputies arrested Price after finding fake IDs in the vehicle.

The U.S. Coast Guard says the 47-year-old’s disappearance prompted a search by aircraft. The agency says the search put rescuers in harm’s way unnecessarily and cost the agency more than $173,000.

Creating a hoax or making a false distress call is a felony. The maximum penalty for making a false distress call is six years in prison, a $5,000 fine, a $250,000 criminal fine and reimbursement to

National Post Newsletters

How To Handle Family Fights Re Aging Parents

Family Meeting

The Smart Way To Handle Family Fights About Aging Parents

Family conflicts can be so emotional and painful. As parents age, many problems can crop up among adult siblings and sometimes with the elder himself. Many of these problems arise from financial issues and caregiver issues. Who is in charge of the money decisions? Should Dad stop handling the checkbook or the investments? Mom is giving away money she can’t afford to give away. Is the aging parent showing signs of cognitive impairment? How bad is it and how do you know? Is one family member doing all the hard work? People in the family disagree about what to do and the fight is on.

When adult children don’t get along, they usually just avoid each other. That works, sort of. Until the aging parent becomes difficult, infirm or has a crisis. The siblings are then forced to come together to make important decisions. Then, buried resentments, sometimes decades old, rear their ugly heads. A tough situation gets even more difficult.

Here at, we are often approached by an exasperated son or daughter who is fed up with the parent, a sibling or a group of family members who are on the “wrong side” of a dispute. People are polarized. Ugly accusations fly back and forth. Someone threatens to get a lawyer, or they do get one and the situation escalates.There’s No Law Against Making Stupid Decisions Carolyn RosenblattContributor

Is there a way out of these situations that does not involve spending resources on lawyers all too happy to bill for their time to advocate for each party’s position?

There is indeed. However, the concept is somewhat new and most people never think of it.

Mediating Family Disputes

One good way out of these conflicts is through mediation of family disputes. We also call it elder mediation. Here’s a brief video that illustrates the concept.

Most of us have heard of mediation one way or another, but we don’t usually think of it as a way to resolve disputes about aging loved ones or siblings who disagree about Mom or Dad. Instead, we think of it as a way to negotiate a way out of a labor dispute, a business matter or a divorce. Mediation is growing and has application to adult families as well.

When the people involved are willing to sit down together, mediation is an excellent way to work through family conflicts, just as it is to work through conflicts in other settings. Overall, research shows us that the success rate of using mediation to fix a dispute is about 75-80%. Those are pretty good odds. A successful outcome of mediation involves an agreement, which is written down and then becomes enforceable, just as any contract is enforceable.

In our experience as mediators at, we find that the agreements people reach in mediation are not necessarily about one party paying another party money. Sometimes they are about who gets to be in charge of decisions, who will share the tasks of caregiving for an aging loved one, or when the next in line person should take over as the trustee of the family trust. A recurring problem is that family members simply do not know how to talk to one another while remaining respectful, even if they disagree.

Family members resort to “silence or violence”. That is, they may clam up when they get angry and this shuts off communication. Or, they get aggressive, accusatory and end up shouting and name calling, which also shuts off communication. A mediator, who is always a trained, neutral outsider, can help the warring parties avoid silence or violence and learn how to listen to each other’s views. With help, they can reach common ground, share information and work out their differences with guidance through the process. (We’d like to see Congress using mediators!)

The Pros and Cons

Mediation is not therapy and it’s not going to instantly fix your damaged relationships. If you hate your family member, you’re not going to kiss and make up just because you went to mediation.

It costs money. You are usually paying a private mediator by the hour or a flat rate. Savvy mediators can do their work by Skype(TM) or by phone for families scattered across states. That works too, though face to face is an ideal way to do this.

But, mediation can clearly help people in dispute come to agreement on specific issues, and this can restore peace. Seeking peace by this dignified means is definitely worth it. When family fights escalate to lawsuits, no one really wins.

If your family is at war and you think it’s hopeless, please do not give up. If you can get family members to agree to try mediation, do your research to find a trained and experienced elder mediator. Private mediators are on and, as well as in community mediation service organizations.

Vancouver Sun Quotes Widely On WESA Laws

Trevor Todd

New WESA laws take effect on April 1,2014.

The Wills, Estates and Succession Act passed by the B.C. legislature on Sept. 24, 2009, finally comes into force in the new year and it’s a sweeping change.

After March 31, the new law brings together and updates various statutes with the twin aims of providing greater certainty for individuals who leave a will and simplifying the process for those responsible for distributing an estate. Among its benefits, the government says the act clarifies the process of inheritance when a person dies without leaving a will; makes the process easier for a spouse to transfer the jointly held title of the family home when a partner dies; clearly outlines the sequence in which to look for heirs; provides the courts with more latitude to ensure the last wishes of the dead are respected; clarifies obligations relating to property inheritance in the context of Nisga’a and Treaty First Nation lands; and lowers the minimum age at which a person can make a will from 19 to 16 years old.

New probate rules also come into effect with the act, which was the product years ago of a long public process that included the participation of the Supreme Court and the B.C. Law Institute.

The hope is these rules will ensure consistency for probate applicants and streamline court processes to provide more timely service.

Still, there are nervous nellies.

A recent meeting to explain the changes to some 300 lawyers produced as much anxiety as it eased: Solicitors wrung their hands with concern; litigators rubbed theirs at the prospect of more, not fewer lawsuits as a result of the changes.

Section 58, for instance, introduces a radically significant idea about what can be considered a will, saying: “the court may, as the circumstances require, order that a record or document, or writing or marking on a will or document be fully effective as though it had been made a) as the will or part of the will of the deceased person, b) as a revocation, alteration or revival of the will of the deceased person, or c) as the testamentary intention of the deceased person.”

Vancouver lawyer Trevor Todd, who runs and participated in the development of the law, says this could create awkward situations.

“Until WESA comes into force,” Todd said, “the court has little power to cure a failure to comply with technical requirements in executing a will. WESA allows the court to look to another ‘record, document or writing, or marking on a will’ to help determine the will-maker’s true intentions, and to give effect to them. Accordingly, the court will have the power to order that a written or electronic record stand as a person’s last will.”

He said that could include an unsigned or improperly executed will, lawyer’s notes from discussions with the person, a copy of a will stored on the person’s computer or electronic tablet, an email sent from the person setting out his or her testamentary intentions.

It will become possible for emails to be held out as the true intention of the will, he said, or for a separation agreement to surface that may be held out to be a statement of the spouse’s testamentary intentions and may be declared by the court to be a valid alteration or an actual will.

Rectification also may be ordered if the court determines that an otherwise valid will does not carry out the will-maker’s intentions because of an accidental slip or omission, a misunderstanding of the will-maker’s instructions by the lawyer, notary or another person involved in the preparation of the will, or a failure to carry out the will-maker’s instructions in drafting the will.

Those increased powers vested in the court are probably the most controversial changes.

“The court’s expanded powers will likely lead to increased litigation, such as by disappointed heirs coming forward with email or other writings of the deceased to demonstrate that the will does not show the deceased’s ‘true intentions,’ ” Todd said.

In terms of other changes, right now, unless a will states you are specifically contemplating marriage to a certain person, marrying after the execution of a will revokes it. WESA removes this stipulation.

“It had been thought that this requirement may not be wellknown by the general public, and thus could accidentally frustrate the intentions of the will-maker,” Todd said.

“As well, given the rising number of common law marriages, this requirement would apply inconsistently to formally married and common law couples.”

Todd added that he thought the new law brought big improvement by reversing the onus in cases where allegations of undue influence arose so that it falls on those who received the gift.

If the validity of a will is challenged on the ground of undue influence at the moment, the onus is on the person making the allegation to prove it.

Initially, the law proposed removing the right of an adult independent child to contest a parent’s estate because the child was not adequately provided for in the will.

Todd was among those who fought that particular proposal and prevailed so that the centuryold provision was not changed. In general, WESA gives the courts much greater leeway to give effect to the intentions of the willmaker – whether that increases or reduces certainty, we’ll have to wait and see how the judges exercise their new authority.