Brown v. Wisted Estate 2010 BCSC 1890 involves a wills variation action brought by 2 of the deceased’s 7 surviving abandoned children, against one other sibling, who inherited everything from their mother.
The deceased abandoned her 7 children in New Brunswick and move to British Columbia in 1968.Continue reading
Trevor Todd and Jackson Todd have handled contested estates for over sixty combined years, including varying wills in favour of long term common law spouses.
The BC Court of Appeal in Picketts v Hall 2009 BCCA 329 significantly overturned the trial judge’s decision relating to a 21 year long commonlaw marriage.
The deceased was a wealthy man who left an estate of more than $18 million.Continue reading
Miller v Miller Estate 2011 BCSC 29, involves a successful claim brought by an 86-year-old surviving spouse, who had few assets and a limited income when she married the testator in 2005.
On his death in 2009, the testator’s will left his wife nothing out of an estate of $510,000.
The wife did however receive the testator’s financial assets of approximately $170,000 by right of survivorship.
The testator had 3 sons from the 1st marriage, and he left almost all of his estate to one son had very little to the other 2.
The court approach the plaintiff’s claim on the basis as to what she would have been entitled based on the notion of separation immediately before the testator’s death.
The court analyzed her claim on that basis, and found that the plaintiff would have been entitled to a half interest in the family assets, all of which were now estate assets, subject then to a significant reapportionment in favor of the deceased of 70%, to achieve fairness.
The court examined the relatively short length of the marriage, the role of the wife as a companion and helper to the deceased, as well as her financial circumstances.
The court concluded that she would have been entitled to minimal compensatory but primarily non-compensatory support under section 15.2 of the Divorce Act.
The court determined that an appropriate award for lump sum spousal support would have been $20,000.
The legal obligation owed to the plaintiff totalled $54,000.
Therefore the court awarded $75,000 out of the net sale proceeds of the matrimonial home, which together with the joint assets received of approximately $170,000, gave the plaintiff roughly 36% of the overall estate.
disinherited.com notes that there has in the past been some inconsistencies in the approach which the courts have taken when dealing with an elderly surviving spouse and the wills variation claim. ( In particular note the decision of the BC Court of Appeal in Crearer)
The trend by the courts in recent years, as witnessed by the approach taken by this judge, is to apply family law and divorce law principles to wills variation claims brought by surviving spouses.
Will Executed Before Marriage “Regrettably” Declared Void
Please note that due to the implementation of WESA. this will no longer be the law for wills signed on or after April 1, 2014
MacLean Estate v. Christiansen 2009 BCSC 1159 is a good example of the legal hardship that can ensue if a testator executes a will before his or her marriage.
This is because section 15 (a) of the Wills Act, RSBC, provides that a will is revoked by the marriage of the testator, unless there is a declaration in the will, that it is made in contemplation of the marriage.Continue reading
Here is an example of a wills variation claim that was dismissed and the reasoning for it .
LeVierge v Whieldon 2010 BCSC 1462 is illustrative of a case where an adult child’s claim under the Wills Variation act was dismissed for valid and rational reasons.
The testatrix left her $1.2 million estate to two of her three children, none of whom were in need.Continue reading
In Gould v Gould Estate 2010 BCCA 424, the BC Court of Appeal upheld the trial decision that dismissed a daughter’s Wills Variation Claim.
The testator left some personal items to her plaintiff daughter, but divided the residue of her estate, worth $900,000 to her three sons equally.
The will explained that the testator had previously gifted to the plaintiff, the family vacation home, worth $210,000 at the date of trial.
The Court dismissed the daughters Wills Variation claim, but did award her an additional $75,000 for unjust enrichment, as a result of her providing free in home care for the testator for the last four years of her life.
disinherited.com opines that the decision is correct and not surprising, given that the daughter had received an almost equal share to her brothers prior to the death of their mother. It is not the law that children of the deceased must be treated equally, only adequately.
Yee v Yu 2010 BCSC 1464 is an example of a Wills Variation case where a son’s claim dismissed in favour of his mother, a surviving spouse.
The testator left everything to his first and only wife in his will.Continue reading
The BC Court of Appeal in Graham v Graham Estate 2010 BCCA 13, upheld the trial Judge where a will varied in favour of the children of the deceased.
The testator left a $1 million dollar estate in equal share between her two children and to the defendants two children( grandchildren, in addition to a $25,000 bequest to the plaintiff’s daughter who was childless.Continue reading
Hutchinson v Weidman Estate2010 BCSC 1356 involves a Wills Variation claim of an alcoholic abusive father who left his$1.1 million dollar to S., one of his four middle aged children, on the basis of that child’s attention to him and her health problems.
The court found that S was effectively unemployable, and that her present and future needs were substantial and compelling.
One of the three disinherited children sought to vary the will and claimed %45 of the estate.
The former matrimonial home had been sold and the mother, who predeceased, left her half to the four children and the other half to the deceased husband.
The plaintiff daughter never saw or spoke to her abusive father again after 1983.
The father redid his will that year, 24 years before his death, and left his entire estate to daughter S, who had serious health problems, and worked in low paying jobs.
The plaintiff owned a home and investments totalling about $800,000.
The plaintiff was a nurse but had health issues herself that rendered her less able to support herself.
The Court found that the reasons the deceased disinherited the plaintiff were not “valid and rational”
The Court however, found that the plaintiff had advantages over her sister S that placed her in a vastly different situation than S.
The Court varied the will to provide the plaintiff with $75,000 with the balance of approximately $1 million going to S.
The case illustrates the Courts recognition of testamentary autonomy and the limits of a wills variation claim made by a disinherited child against another child with significant disabilities that rendered her unemployable.
The recent Supreme Court of British Columbia decision in Peri vs. McCutcheon 2011 BCSC 273, March 7, 2004 clarifies that at least at the Supreme Court level, the wills variation act of British Columbia only provides for claims brought by biological or adopted children.
The action was brought by a 55-year-old female plaintiff who was named as a child of the wealthy deceased on her birth certificate, but was found to be not his biological child, and he did not raise her although he provided financial support for her. The deceased had also signed the plaintiff’s immigration card as her “father”.Continue reading