Calbrick v Wolgram Estate 2009 BCSC 1222 is an unfortunate example of a fact pattern that occurs all too often in estate litigation.
Basically, one sibling alleged his sister obtained substantial gifts from their mother using undue influence, and abusing her mother’s power of attorney.Continue reading
In wills variation litigation, it is quite common for spouses, infant children, and adult children, to have conflicting claims against the other, but the claim of a spouse will trump the claims of adult children..
Generally speaking, claims based on legal obligations, such as those owed by a testator to spouses and minor children, will take precedence over moral obligations that might be owed to adult independent children.
Where the size of the estate permits, the court may satisfy moral obligations after firstly satisfying the legal obligations.
Waldman v Blumes 2009 BCSC 1012 is a good example of how the courts might deal with such conflicting claims .
The facts are a bit unique given the promises and decisions made by the testator and his spouse during their lifetimes.
The testator died at age 91 , widowing his 2nd wife and leaving four children, two of them ages 17 & 15 from the 2nd marriage.
The widow, a lawyer, was 34 years younger than her husband and had made significant career and family decisions based on their joint decision that the deceased would leave her his entire estate.
The estate was approximately $1.2 million.
The spouse had in addition also received the family home prior to his death.
The will did not provide for his two adult children.
The court found that as a result of the reliance on the mutual plans made and the lifestyle adopted, the testator owed his widow a high legal obligation.
She had two children at his urging and worked only part time at his urging, as given their vast age difference, he wanted his family around him.
The court awarded $75,000 to each of two adult children , based primarily on the fact that neither daughter had received any inheritance upon the death of their mother.
The Court left it to counsel for the minor children to try and negoitate how much of the remaining $1,050,000 belonged to each child and how much belonged to their mother.
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