Widow in Short Marriage Awarded 36% of Deceased Husband’s Estate

Elderly Wife in Short Marriage Awarded 36% of Husband's Estate

86 Year Old Elderly Wife in Short Marriage Awarded 36% of  Husband’s Estate

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.

Court “Regrettably” Declares Will Executed Before Marriage To Be Void

regretsWill 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

Wills Variation- Dismissed For Valid and Rational Reasons

Wills Variation Claim Dismissed

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

Wills Variation- Daughter Claim Dismissed

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.

Will Varied From Grandchildren to Children of Deceased

Will Varied From Grandchildren to Children of Deceased

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

Wills Variation Limited with Remaining $1 Million to Unemployable Sister

Wills Variation Limited to $75,000

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.

Wills Variation and Who is a Child

WHo is a child

Who is a Child Under the Wills Variation act, now WESA?

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

Court Rewrites Will of a Man to Include Daughters

Court Rewrites Will

Where there’s a will, there’s a way to have it overturned, as was the case when a court re wrote a mans will to include his disinherited daughters.

The Globe and Mail reported:

A B.C Supreme Court judge has ordered a man to 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 “plaintif 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. Werben “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 four 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 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, lawyers 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 his 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 them 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.'”

 

Sunny Dhillon

The Globe and Mail

02-12-2010

Wills Variation- Disinherited Daughters Share Equally

equal sharesWills Variation Action for Daughters Successful on Moral Grounds

Skwarok v Werbenuk Estate 1678 2010 BCSC 1678, is a case where 4 disinherited daughters won an equal share of the estate with their brother who had been left everything.

William Werbenuk died more than two years ago with just enough money in the bank to pay for his funeral. The 86-year-old widower’s will gave all assets to his only son, Randall, and left his four daughters with nothing.

This week, a B.C Supreme Court judge overturned the Penticton, B.C., man’s will, saying his estate should be distributed to all of the man’s children based on “contemporary moral standards” – a move that has sparked much debate about a judge’s right to change a person’s will after they die.

Justice Randall Wong ordered the estate, including Mr. Werbenuk’s Saskatchewan farmland and valuable and extensive violin collection, be split according to need among Mr. Werbenuk’s son and four daughters, threee of whom testified having endured years of abuse at the hands of their father.

In McBride v. McBride Estate, 2010 BCSC 443 (B.C. S.C.), Madam Justice Ballance, discusses some of the factors the courts consider when assessing the strength of a testator’s moral obligations to independent adult children at paragraphs 129 – 142.

25      The part of her discussion that is particularly relevant is found in paragraphs 132 – 134:
3. Estrangement/Neglect
[132] In the early development of the caselaw, a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child. The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray v. Gray Estate, 2002 BCCA 94, 98 B.C.L.R. (3d) 389, Doucette v. Clarke, 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette]; Tomlyn v. Kennedy, 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v. G.G. Estate, 2005 BCSC 1855; Ryan.
4. Gifts and benefits made by the testator during lifetime
[133] Depending on the circumstances, a testator’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to the claimant, or the claimant has received assets on the testator’s death outside the framework of the will. This includes benefits conferred by way of an inter vivos trust, outright gift and assets passing on death by operation of law such as joint tenancies, and by way of specific beneficiary designation of insurance proceeds, RRSPs, pension benefits, RIFs, and the like. On the same reasoning, if a testator has made pre-death gifts to individuals other than the plaintiff, or has arranged his or her affairs to facilitate a passing of assets to such individuals outside the provisions of the will, the moral duty owed to the plaintiff may be intensified. See generally: Ryan; Higgins v. Wojciechowski Estate, [1992] B.C.J. No. 1398 (S.C.); Inch v. Battie, 2007 BCSC 1249, 36 E.T.R (3d) 79 [Inch].
5. Unequal treatment of children
[134] That an independent child has not been given the same provision under a will as the testator’s other child or children will not, of itself, necessarily establish a moral claim: Re Lukie et al and Helgason et al., 72 D.L.R. (3d) 395, [1976] B.C.J. No. 1393 (C.A.); Price. On the other hand, in Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76, 6 E.T.R. (2d) 1 (C.A.), the Court of Appeal held that equal treatment among independent adult children is prima facie fair from a moral duty standpoint. In Ryan, the court held that in the absence of relevant reasons for an unequal distribution, there is a reasonable expectation that adult children will share equally, even though no legal obligation requiring equal distribution exists. (para. 67). The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges a testator’s moral duty was applied in Inch. There, the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers. The proposition was recently revisited by the Court of Appeal in Doucette. In that case, the Court of Appeal appeared to have no difficulty with the disinheritance of one of the preferred beneficiaries by allocating her nothing out of the estate in light of the generous gifts that she had received outside the will via jointly held assets.

The daughters have a “valid moral claim to share in the family wealth,” Judge Wong ruled.

According to the ruling, Mr. Werbenuk physically and emotionally abused his daughters. As punishment, their father regularly forced them to wash his feet, the women testified — a detail th helped lead Judge Wong to decide that the father was a “hard and rigid man who ruled his family, and especially the women, with an iron fist.”

 

In British Columbia, a parent has a moral obligation to provide for their children after death under the Wills Variation Act, said Trevor Todd, a lawyer who exclusively defends disinherited people. It’s also the only province in which a non-dependent adult child can challenge his or her deceased parent’s will.

In most other provinces, only dependents and spouses can appeal a will before a judge through a similar wills variation act, he said.

The Wills Variation Act has helped many adult children who feel they have been unjustly denied their parents’ wealth after death, said Mr. Todd.

“I see lots of cases like that, where the children are damaged goods,” he said. “what a lot of these cases are is the last kick at you from the grave, the last insult.”

Judges are often sensitive to that and they do need to make judgments on individual cases because they’re all so different, he said.

A parent may explain why children were disinherited, but that’s only one side of the story, said Mr. Todd.

“Sometimes you’ll see wills where a father will be disinheriting his daughter, saying ‘She hasn’t called me in 30years,’ When you tell the daughter dad says he hasn’t seen her, that they’re estranged, she might say ‘Goddamn right we are, he molested me,'” Mr. Todd said.

 

Judge Wong empathized with the harsh life the daughters had been subjected to and Randall Werbenuk has to accept that, Mr Albas said.

“[My client] is of the opinion that the judge was unduly hard on him. He basically did what his dad told him and h had a reasonable expectation that in doing that, he would be rewarded [in the will],” he said