Simultaneous Deaths and Survivorship

Simultaneous Deaths and Survivorship | Disinherited Estate Litigation

The law relating to simultaneous deaths and survivorship is set out in section 5 WESA.

If two or more persons die at the same time or in circumstances that make it uncertain which of them survive the other or others, unless a contrary intention appears in an instrument, rights to property must be determined as if each had survived the other or others.

S 5(1) states that if two or more persons hold property as joint tenants, or hold a joint account, and both of them all die at the same time or in circumstances that make it uncertain which of them survive the other or others, unless a contrary intention appears in an instrument, for the purpose of determining rights to property, each person is deemed to have held the property or account as tenants in common with the other or with each other or others.

Under previous legislation the younger person was to have been presumed to outlive the older, and thus the younger persons estate would inherit everything.

The new provision in WESA is designed to ensure the default joint tenant’s perish in a common disaster, their respective estate should benefit from their shares in the jointly held property rather than the estate of only the youngest of the joint tenants.

This is also what is meant by rights to property will be determined as if each deceased person survive the other or others.

It is also a requirement of section 10 WESA that there is a mandatory five-day survival rule in order to inherit.

S 10 (1) WESA states that a person who does not survive a deceased person by five days, or longer period provided in an instrument, is conclusively deemed to have died before the deceased person for all purposes affecting the estate of the deceased person or property of which the deceased person was competent to give by will to another.

(2) if two or more persons hold property as joint tenants, or hold a joint account,

a) in the case of two persons, it cannot be established that one of them survive the other by five days,

1) one half of the property passes as if the person survive the other person by five days, and

2) one half of the property passes as if the other person referred to in subparagraph one had survived the first person referred to in subparagraph 1 x 5 days,

b) in the case of more than two persons, cannot be established that at least one of them survive the other by five days, the property must be divided into as many equal shares as there are joint tenants or persons holding the joint account, and the shares must be distributed respectively to those persons who would have been entitled to a share in the event that each of the person said survived.

Under the Interpretation act, to calculate five days one excludes the first day and includes the last day.

Wills Variation Explained

Wills Variation Explained | Disinherited

JR v JDM 2016 BCSC 2265 explained the criteria in assessing a wills variation claim.

[81] The key provision of the WVA is s. 2 ( now Section 60 WESA) . That section provides that if, in the Court’s opinion, a will fails to make adequate provision for the proper maintenance and support of the testator’s spouse or children, the Court is empowered, in its discretion, to vary the will to make provision that it considers adequate, just and equitable in the circumstances.

[82] Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, is the governing authority in British Columbia on the WVA. McLachlin J., as she then was, writing for the Court, articulated the relevant considerations and principles that animate the application of the WVA. The fundamental approach is anchored in her observation that “[t]he search is for contemporary justice”: Tataryn, at 815. The courts must read the WVA “in light of modem values and expectations” and “are not necessarily bound by the views and awards made in earlier times”: Tataryn, at 814-815.

[83] The Court in Tataryn stated that the determination of whether a will makes adequate provision and, if not, what provision would be adequate, just and equitable, are “two sides of the same coin”: Tataryn, at 814.

[84] The primary statutory objective of the WVA is the adequate, just, and equitable provision for a testator’s spouse and children. As identified in Tataryn, the other protected interest is testamentary autonomy. However, testamentary freedom must yield to the extent required to achieve adequate, just, and equitable provision for the applicant spouse and/or children. In that sense and to that degree only, testamentary autonomy will be curtailed by the application of the WVA: McBride v. Voth, 2010 BCSC 443 at para. 125. The Court of Appeal in Chan v. Lee (Estate), 2004 BCCA 644 at para. 43 affirmed that courts should not approach the WVA as a means “to right all the perceived wrongs of the past” or “to improve upon the degree of fairness of a will” if the testator has met his obligations under the WVA.

[85] In addressing the adequacy of the testamentary provision, Madam Justice McLachlin clarified that the question of whether a testator has acted as a judicious parent or spouse is measured by an objective standard, assessed in light of current societal legal norms and moral norms. As outlined in Tataryn, legal norms are the obligations that the law would impose upon the testator during his or her life if the question of provision for a claimant’s spouse or child were to arise. A testator’s moral duties are grounded in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”: Tataryn, at 820-821.

[86] The concept of adequate provision is a flexible notion which turns on the particular circumstances of the case: Dunsdon v. Dunsdon, 2012 BCSC 1274, at para. 131. Tataryn expressly acknowledged that moral duties are more susceptible to being viewed differently by different people because there is no clear legal standard by which to judge such duties: Tataryn, at 822. However, the analysis in Tataryn underscores that the court must apply an approach that accords with a contemporary view of marital and parental obligations.

[87] The Court in Tataryn recognized that the foregoing assessment necessarily involved the balancing of competing claims, and held that where the size of the estate permits, all moral and legal claims should be satisfied. Where prioritization is necessary, generally, claims that would have been recognized as legal obligations during a testator’s lifetime take precedence over moral claims. The court must also weigh the competing moral claims and assign each its priority according to their relative strength: Tataryn, at 823. The Court recognized that such an analysis would produce a range of options for the distribution of assets which might be considered appropriate in the circumstances. The court should only make an order to vary a will where the testator’s chosen distribution falls outside of this range.

[88] The jurisprudence also establishes that in determining whether the will-maker has fulfilled his or her obligations, the court may consider gifts made outside the will. If a will-maker has made inter vivos gifts to individuals other than the claimant or has arranged his affairs to facilitate a passing of assets to such individuals outside the framework of the will, the moral duty to a claimant may be intensified: Wong v. Soo, 2015 BCSC 1741. Conversely and depending on the circumstances, a will-maker’s moral duty may be diminished or negated entirely where he or she has made gifts to a claimant either before death or in consequence of it: Dundson at para. 185; Doucette at para. 84.

[89] The legislated scheme of intestate succession does not serve as a guidepost in determining whether adequate provision has been made under the WVA: Wilson at para. 379; Hall v. Korejwo, 2011 BCCA 355 at para. 46.

[90] In reference to the moral claim of independent adult children, the Court in Tataryn observed that while they “may be more tenuous” than that of a spouse or dependent child, some provision for adult independent children should be made if the size of the estate permits and in the absence of circumstances that would negate the existence of such an obligation: Tataryn,
at 822-823.

[91 ] In Dunsdon Madam Justice Ballance conveniently summarized the considerations that inform the existence and strength of a testator’s moral duty to independent children:

[134] In the posi-Tataryn era, the following considerations have been accepted as informing the existence and strength of a testator’s moral duty to independent children:

  • relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
  • size of the estate;
  • contributions by the claimant;
  • reasonably held expectations of the claimant;
  • standard of living of the testator and claimant;
  • gifts and benefits made by the testator outside the will;
  • testator’s reasons for disinheriting;
  • financial need and other personal circumstances, including disability, of the claimant;
  • misconduct or poor character of the claimant;
  • competing claimants and other beneficiaries:

(See Clucas v. Clucas Estate, [1999] B.C.J. No. 436; McBride v. McBride Estate, 2010 BCSC 443; Yee v. Yu, 2010 BCSC 1464; Wilson v. Lougheed, 2010 BCSC 1868)

[92] In assessing the strength of the legal and moral obligations owed by a testator to a second
spouse, the court will consider factors such as:

(a) The length of the marriage;
(b) When and how the testator’s assets were acquired;
(c) The contribution of the second spouse;
(d) How family assets would be divided under the applicable family legislation upon marriage breakdown;
(e) Competing obligations with the children from the first marriage;
(f) Financial circumstances of the spouse;
(g) The size of the estate; and
(h) The magnitude of assets passing to the spouse outside of the estate in consequence
of other pre-death transactions undertaken by the testator.

[See Wongv. Soo, 2015 BCSC 1741 at paras. 73-82; Saugestad v. Saugestad, 2006 BCSC 1839, varied on different grounds 2008 BCCA 38; Mawdsley v. Meshen, 2010 BCSC 1099, affirmed 2012 BCCA 91; Ciarniello v. James 2016 BCSC 1699]

S.151 WESA: Leave to Commence a Court Action on Behalf of the Executor

S.151 WESA: Leave to Commence a Court Action on Behalf of Executor

Re Gordon Estate 2018 BCSC 487 is a decision that granted leave under section 151 of WESA for the residual beneficiary, the University of British Columbia, to commence an action in the name and on behalf of the executor of the estate of the deceased.

The University of British Columbia was the sole residual beneficiary under the deceased will, however prior to her death, the deceased transferred the majority of her assets to her gardener which totaled almost $2 million.

There was very little in the way of assets left in the estate for the residual beneficiary.

The petition and supporting materials filed by the University of British Columbia showed that the deceased was basically blind due to macular degeneration and was cognitively deficient.

the deceased’s long time lawyer refused to change her will and prepare a transfer of her home on the basis that she was confused, and believed amongst other things that she owned two houses when in fact she only owned one.

The court granted relief pursuant to section 151 of WESA are to allow the University of British Columbia to bring action in the place of the executor, to set aside the transfer of assets done prior to her death so as to bring them into her estate, so that the University could inherit them.

Section 151 of WESA states as follows:

151 (1) despite section 136, a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person

a) to recover property were to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
b) the court may grant leave under this section if:
a) the court determines the beneficiary or intestate successor seeking leave
1) has made reasonable efforts to cause the personal representative to commence or defend the proceeding,
2) has given notice of the application for leave to
a) the personal representative
b) any other beneficiaries or intestate successors and c) is acting in good faith, and
3) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of the beneficiary or an intestate successor for the proceeding to be broader defended

4) on application by a beneficiary, and intestate successor or personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

The court considered the decision Bunn v Bunn 2016 BCSC 2146 were the court refused an application by a beneficiary, the daughter of the deceased, seeking leave to bring an action in the name and on behalf of the executor against the applicant’s brother and one of his companies. The proposed action would’ve challenge certain inter vivos transactions as having been the conduct of undue influence, or alternatively based on the doctrine of non-test factum.

In the Bunn decision, the court held that the terms necessary and expedient or disjunctive, such that the applicant need only establish that the proposed action is either necessary or expedient. A proposed proceeding will be considered necessary if the personal representative is unwilling or unable to proceed. It may be expedient if it’s in the best interest of the estate.

The court gave great weight to the lawyer who declined to act for the deceased because of her ongoing lack of capacity, and that he had a long-standing relationship with her. The lawyer who actually prepared the transfer of assets, did not provide an affidavit himself, and his handwritten notes of his one and only conversation with the deceased sis not elucidate his practice in interviewing persons in the deceased situation. There was no description of the specific questions he asked of the specific answers the deceased gave to support his apparent conclusion that the deceased was able to” tell me about her assets”.

S.46 WESA: Priorities of Distribution When Gifts Fail

S.46 WESA: Priorities of Distribution When Gifts Fail | Disinherited

Terezakis Estate 2018 BCSC 805 discusses section 46 of WESA relating to an interpretation of the residue of a will that dealt with its interpretation with respect to two of five children who had predeceased the will maker.

The two children who had predeceased the will maker also left children.

The residue clause of the will was confusing as to whether it was the intention of the will maker to leave the share of any child who might have predeceased the testator to the children of the predeceased children ie to the grandchildren of the deceased.

The court applied the armchair rule of construction that requires the court to put itself in the position of the testator at the time when the will was made and to construe the language from the vantage point in order to determine the actual or subjective intent of the testator –Re Burke (1960) O.R. 26 (C.A.).

The court noted that the will information sheet reflected that the testator presumed wishes to ensure that her grandchildren receive a share of the residue of her estate in the event that any of her children predeceased her. This was the expressed intention of the testator at the time the will was drafted, and the court applying the rule armchair rule, stated that it was the best evidence upon which the will should be interpreted by the court.

The court referred to both sections 42 and 46 of WESA.

Section 42 WESA states:

42. This section is subject to a contrary intention appearing in a will.

42(4)  gifts of property to a class of persons that:

a) is described as a will makers issue or descendants, or by a similar word and
b) b) encompasses more than one generation of beneficiaries, must be distributed as if it were part of an intestate estate to be distributed to descendants.

The court was also mindful of the presumption that a testator does not intend to create an intestacy- Milwarde-Yates v Sipila 2009 BCSC 277 at para. 49.

S.46 WESA states:

1) if gifts in a will cannot take effect for any reason, including, because of beneficiary dies before the will maker, the property that is subject of the gifts must, subject to a contrary intention appearing in the will, be distributed to the following priorities:

a) to the alternative beneficiary of the gifts, if any, named are described by the will maker, whether the gifts fail for a reason specifically contemplated by the will maker, or for any other reason;

b) if the beneficiary was the brother, sister, or a descendent of the will maker, to their descendants, determined that the date of the will maker’s death, in accordance with section 42(4) WESA (that refers to the particular words in a will);

S 46(2) states:

2) if gifts cannot take effect because of beneficiary dies before the will maker, subsection(1) applies whether the beneficiary’s death occurs before or after the will is made.

The court accordingly ordered that the distribution of the estate be made equally among her children and grandchildren, being the grandchildren of the predeceased children.

Admissible Extrinsic Evidence In S. 58 WESA Applications

Admissible Extrinsic Evidence in S. 58 WESA Applications | Disinherited

Admissible extrinsic evidence in S 58 WESA applications to “ cure” defective wills was discussed in Re Mace Estate 2018 BCSC 1284.

In short, the ordinary rules of admissibility apply.

Ordinarily, evidence must be relevant to a live issue and not be subject to exclusion under any other rule of law or policy to be admissible.

Relevance must therefore be assessed on a case-by-case basis , as set out in Regina v White 2011 SCC 13:

“In order for evidence to satisfy the standard of relevance, it must have some tendency is a matter of logic and human experience to make the proposition for which it is advanced, more likely than that proposition would be in the absence of that evidence”.

Under section 58 WESA inquiries to determine, on a balance of probabilities, whether a noncompliant document embodies the deceased testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions, namely the deceased is not available to testify.

In addition, by their nature, the source of documents being assessed will likely not have been created with legal assistance. Given this context, and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased state of mind, understanding and intention regarding the document.

Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry –Langseth estate v Gardiner (19990) 75 DLR (4th) 25 at 33 ( Man. CA)

The case authorities discuss that the extrinsic evidence may include events that occurred before, when and after the document was created – the key issue in an application under section 58 is whether, on the balance of probabilities, the item placed before the court, the record or document or writing or marking on a will or document, was intended to have testamentary effect: that is, does it represent the deliberate or fixed and final expression of intention of the material time as to the to the disposal of the will maker’s property on death? The role of the court on an application under section 58 is not to determine the validity of the instrument per se, or the validity of the gifts contained within it, but determine whether the instrument represents the deceased testamentary intention- Re Smith Estate 2016 BCSC 350.

The BC Court of Appeal decision in Re Hadley Estate 2017 BCCA 311 confirm that section 58 of WESA does not require a basic level of compliance with the formalities of making a will. The consideration of the court is whether the document represents the testamentary intentions of its maker. The material time for determining these intentions will in many cases be the time at which the will was made. However, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will maker’s intention.

In addition to the language of the document, extrinsic evidence of testamentary intent is admissible on the inquiry, such as the circumstances surrounding its creation and direct statements of the deceased. Such evidence benefits. The court, since the person who made the document will no longer be available to testify, and often the document will not have been made with the assistance of counsel.

The most common situation in which an application fails is where the court is simply not satisfied that the propounded document or record contains the will maker’s final thoughts are intentions with respect to the will or its alteration, revocation or revival, but is just a draft are some preliminary notes that are subject to change. As one court as put it, the curative provisions allow the court to overlook the formal requirements of the act, but not to speculate on the testamentary intentions of the deceased – Re Archer Estate 2005 SKQB 118 at para. 9

BC Lawyer- Varying a Will- Will Variation and Second Marriages

Wills Variation (S 60 WESA) and the Second Spouse

Trevor todd and Jackson Todd have practiced in contested estates for over sixty combined years, including varying wills relating to second marriages.


In Unger v Unger Estate 2017 BCSC 1946 the court considered the legal and moral claims of a long time second spouse against the estate of her late husband who did not provide for her in his will.

The plaintiff Mr. Unger aged 80 was married to the deceased for 32 years. It was a second marriage for both.

The surviving spouse moved into the home of the deceased after the death of her first husband. At the request of the plaintiff the deceased made no claim against her first husband’s estate. She entered the second marriage with Mr. Unger was no assets and did not work outside of the home.

The deceased purchased the matrimonial home in 1981. It was originally held in joint tenancy, but was severed in 1993 after the plaintiff and the deceased briefly separated for a few months. It remained in tenancy in common until his death.

The plaintiff suffered physical and emotional abuse at the hands of the deceased, and at one point the deceased was convicted of assault and placed on probation. During their retirement years the couple lived in the matrimonial home and both of them provided services to maintain and enhance the property

After 2010 the plaintiff suffered a series of health issues including mini strokes.

In 2013 the deceased due to his suffering from dementia was placed in an assisted care facility, and the plaintiff visited him daily and was present when he passed away that same year.

The defendants were the deceased four adult children from his first marriage.

His will left $20,000 each to his two daughters and the residue to be divided amongst all four children.

No provision was made for the plaintiff and the reasons stated in the will was that the deceased had transferred title to her of 50% of the matrimonial home during his lifetime.

The defendants had been financially independent of their father for many years, although one of the daughters was very ill, and lived on minimal government assistance. Another daughter earned a low hourly rate and lived with her husband in a trailer.

The value of the estate, including the matrimonial home was $609,000, not including a $100,000 account of the deceased held jointly with his second daughter.

The court varied the will in favor of the surviving widow, holding that the deceased purported rationale for excluding the plaintiff from the will was not valid.

The court found that the legal and moral obligations owed to the plaintiff or high was from a legal obligation and she was his partner for 34 years, and remained with him despite his abusive conduct towards her. She looked after him to the best of her abilities and remained by his side until his death. As such, she was also owed a moral obligation as well as a legal obligation by the deceased to be provided for.

The court awarded her 30% of the residue of the estate, with the remaining 70% to be equally distributed amongst his four children. She also kept her one half of the house that her late husband transferred to her.

The Law

Legal obligation

The court relied heavily on the applicable family law legislation, the Family Law act that came into force in March 18, 2013.

Under section 81(b) of that act, each spouse is entitled to an undivided half interest in all family property, which includes all property owned by at least one spouse as well as beneficial interests of at least one spouse.

However, excluded from the family properties amongst other things, any property acquired by a spouse before the relationship began, and any property derived from such property or disposition of such property S 85 (1)

The evidence was that the plaintiff did not provide any initial consideration in exchange for being put on title to the matrimonial home previously owned solely by the husband. The evidence supported that Mr. Unger intended to transfer the property to the plaintiff as a gift.

The court held that the transfer of the one half interest in the matrimonial home to the plaintiff was a gift, and satisfied the deceased’s legal obligations to her.

Moral obligation

The court referred to the decision JR v. JDM 2016 BCSC 2265 in setting out the factors to consider in assessing the moral claim in a second marriage

1) the length of the marriage;

2) when and how the testator’s assets were acquired;

3) the contribution of the second spouse;

4) how family assets would be divided under the applicable family legislation upon marriage breakdown;

5) competing obligations with the children from the first marriage;

6) financial circumstances of the spouse;

7) the size of the estate; and

8) the magnitude of assets passing to the spouse outside of the estate, in consequence of other pre death transactions undertaken by the testator

The moral obligation of a testator in the second marriage was considered in the decision Suagestad v Saugestad 2006 BCSC 1839, where the court gave a more limited moral claim of a second wife for the bulk of the testator’s estate was acquired during a first marriage

The decision

The court found that the deceased fail to discharge his legal and moral obligation owed to his wife when he provided with nothing under his will.

The plaintiff was allowed to keep her own one half of the matrimonial home, and was awarded 30% of the residue the estate, with the remaining 70% to be equally divided between the four children.

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.

Understanding Testamentary Documents

A testamentary document is like a will because the will is the most common form of that type of document. A will is a document that has its vigor and effect upon a death. In other words, a will is an invalid document until a death. It’s an important document but it’s not the type of document that you can take to the bank and borrow against until the actual death occurs and you can prove that you are a beneficiary.

Now, what’s the significance? Some documents look testamentary but may not be. While other documents do not necessarily look testamentary but might be. The legal test is whether the document requires its vigor and effect to be a death in order for the document to come into force and effect. The significance is is that if it is a testamentary document, then it must be signed in accordance with the Wills Act which requires two witnesses and the presence of the person signing the document all in the presence of each other. If it’s not validly witnessed in the court in such as that, then the document might not be valid. The article shows cases where the document is testamentary and cases where the document is found not to be testamentary.

How to Keep Wills Variation Out of BC Court

This video is about how to keep wills variation out of court which is basically what most testators want to do at the end of the day. The video and article is a very in-depth review of what the requirements are with respect to executing valid wills and dealing with various wills issues that arise in a state litigation such as ambiguities or missing pages or all sorts of problems that can arise. As I said, a very detailed examination of very, very many wills issues that can arise in a state litigation.

The Basics of the Wills Variation Act

This video is about the basics of the Wills Variation Act in British Columbia, Canada. The Wills Variation Act only applies to this province so people from elsewhere must realize that we can only contest wills in this province where the assets are in this province. In any event, this is a detailed look at the statute and some of the requirements to comply with it and some of the problems that we run into in pursuing the many, many claims of that we have pertaining to this statute.

The Wills Variation Act allows children of the deceased and spouses of the deceased to contest a will if they have been inadequately provided for. The action must be commenced within six months of the grant of probate or the person would be out of time to do so. So people should consult for legal advice as soon as possible either before a death or immediately after death to get legal advice as to what claims, if any, they may have if they feel they have been inadequately provided for. The article and video also deal with various ways that can be used to circumvent the Wills Variation Act, and those are some of the problems that we have in trying to recoup inheritances for people who have been disinherited. Thank you very much for watching.