Court Declines to Expand Definition of Child

child definition

Child Under Wills Variation Act Defined and Not Expanded

The recent British Columbia Court of Appeal decision in Peri vs. McCutcheon 2011 BCCA 401 clarifies that 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 through DNA testing.Continue reading

Contested Estates, Vancouver Lawyer &Wills Variation Spouse vs. Child

Trevor Todd and Jackson Todd have handled contested estates including pursuant to wills variation proceedings for over 60 combined years

 

Hall v Korejwo 2011 BCCA 355 is a Court of Appeal decision involving a wills variation dispute between a 60-year-old adult son of the deceased, and the 65-year-old surviving common-law spouse.

The deceased was estranged from both of his children for most of his life.

Shortly before his death in 2008, he repaired his estrangement with one of his sons, but remained estranged from the other.

His will stated that he had already provided for his other estranged son, in addition to him having inherited most of his mother’s estate, to the exclusion of his brother.

The deceased estate was worth approximately $438,000.

In his will he left $43,000 to various family members, $10,000 plus a car to the plaintiff son, and the residue of the estate to his common-law spouse of 4 years.

The 60-year-old son was unable to work by reason of disability, had $90,000 in assets, and limited income.

The 65-year-old common-law spouse had no assets and limited income.

The trial decision is somewhat unusual in that the judge increased the plaintiff’s award by an additional $10,000, with a life estate in the residue to the common-law spouse, and a gift over to the plaintiff in the unlikely event he should survive her.

The Court of Appeal allowed the appeals of both the adult plaintiff and the common-law spouse.

The will was varied to give the plaintiff son a total of $60,000, the $43,000 to family members was left unchanged, and the residue of the estate was given to the common-law spouse.

The court gave a clear statement as to the legal obligation of the deceased to provide for his surviving common-law spouse. The decision at paragraph 33 and 34 also quotes from the leading decision of the Supreme Court of Canada, Tataryn v Tataryn (1994) 2 SCR 807

The court considered whether the provisions of the Estate Administration act has any direct role to play in concerning what is adequate just and equitable under section 2 of the Wills Variation act.

The court concluded that the Estate Administration act merely represents the default position when there is no will and the testator’s wishes are unknown. They therefore cannot directly affect the considerations that govern applications under the Wills Variation act, when the testator’s intentions are clearly set out in the will, and the court is entitled to consider a range of options in judging whether it should defer to testamentary autonomy.

Rectification of Error in Will Refused

rectification 2Rectification of Error in Will Refused By Ontario Court of Appeal

Robinson Estate v Robinson 2011 CarswellOnt 5819 once again demonstrated the limited jurisdiction that exists in the courts to remedy a mistake and omission made in the deceased’s will, even by the drafting lawyer.

The deceased testator executed 2 separate wills, one was to deal with property held in her native Spain as well as England, and a subsequent one to deal with her Canadian property.Continue reading

Court Has Very Limited Jurisdiction to Add Words to A Will

Rectification of Will Refused

Re Ali Estate 2011 BCSC 537, involves an application to rectify a will prior to its admission into probate.

The deceased died owning all the shares of a company operated with his brother.

The testator’s estate was valued at $9 million, including the company, which was worth approximately 4.5 million.

The testator had significant monies owing to him from the company for shareholders loans and a promissory note.

The testator left 70% of his interest in the company to his brother.

Two children of the testator, in related litigation, commenced a wills variation action.

The brother, a co-executor, applied for rectification of the will by adding the words ” including my shareholders loans and promissory notes owing to me” in defining the testator’s interest in the company.

The court dismissed the petitioner’s application to add the words.

The court discussed the interesting historical distinction between the court sitting as a court of probate, and the court sitting as a court of construction.

These two concurrent jurisdictions have historically been exercised in separate proceedings.

When ruling upon the validity of a will, the court sits as a court of probate, and when interpreting a will, it sits as a court of construction.

Different rules apply for each court.

For example, except in very restricted circumstances, the court is not permitted to review direct evidence of the testator’s intentions on a construction application.

The court in exercising its probate jurisdiction, does have a limited power to rectify the mistake in a will where the language of the will fails to express the testator’s actual intentions.

A will is only valid to the extent a testator knew and approved of its contents.

It is well-established on the authorities that before will is admitted to probate, the court may, in the exercise of its probate jurisdiction, delete words from a will that have been included without the testator’s requisite knowledge and approval.

The court concluded that the weight of authority affirms the principle that when the court sits as a court of probate, it has no jurisdiction to add words to a will.

The court stated ” that the words that the petitioner seeks to add to this will are an attempt by him, in the guise of a rectification application, to add new language to the will to accord with, or to achieve, the interpretation desired by the petitioner.”

disinherited.com agrees.

The court then to the somewhat unusual step of ordering the petitioner to set the hearing of the construction application with the affidavits containing only that evidence which is properly admissible on the construction application. The matter was to be set before the same judge.

“Unconventional Relationship” Not a Marriage Like Relationship

 

unconventional relationship“Unconventional Relationship” Held not to be Spousal as defined by marriage like in nature

E.(L) v. J.(D) 2011 BCSC 671 is an example of the strict requirement for parties to live in a marriage like relationship for at least two years preceding death, in order to qualify as a spouse and inherit on an intestacy under the Estate Administration Act.

In 2005, the Plaintiff, then 16 met BF, age 53 on an internet site for “alternative relationships”.Continue reading

Wills Variation- Long Time Relationship

Ross v Bloomfield 2010 BCSC 594 is a wills variation action brought by a surviving husband after his common law partner of 21 years died.

The deceased left a will dated April 2003 in which she left her common law partner $6000, while the residue of her estate was divided between a church, nephew, niece and some grandnephews.

The deceased had no children and the plaintiff had one son. He lived with the parties for several years while he attended University.

He considered the deceased to be his stepmother and inluded her her as his family“

At the deceased`s death, the plaintiff was retired, owned a clear title house worth $1,240,000, and had investments of approximately $150,000.

The deceased had some health problems including an injury to his foot with left him with a walking disability, diabetes, and liver cancer for which he underwent surgery in the fall of 2003.

Approximately one month before her death the deceased attempted to execute a new will which appointed the plaintiff executor, and left him the residue of the estate.

While the plaintiff did apparently sign her name to the will, it was not properly executed, and thus was not a valid will.

However, the judge did consider the new will“ as evidence of her intentions to provide for her spouse.

At the time of the deceased death, the plaintiff’s net worth was approximately 5 times the size of the deceased estate.

The court found that the plaintiff used his savings during the years that the deceased was unemployed and unable to contribute towards the parties expenses.

The court found that because of this, the plaintiff used his inheritance, earnings, and savings for the deceased benefit, which deprived him of an opportunity to create more assets for himself.

The court found that the plaintiff had established that his financial resources were inadequate to meet and sustain the quality of life enjoyed during his relationship with the deceased.

The court specifically found that the plaintiff was not obligated to reduce his already modest lifestyle.

Accordingly the court ordered that the plaintiff received 70% of the net value of the estate.

disinherited.com specifically applauds the reasoning of this decision in favor of a common-law spouse, over more distant relatives.

disinherited.com specifically agrees with the courts reasoning that the husband’s net worth, in relation to the deceased, was not a factor in considering whether he had been adequately provided for by his spouse.

BC Estate Lawyer – Executor Removed For Conflict of Interest

Trevor Todd and Jackson Todd have practiced estate litigation in Vancouver for over sixty combined years and have experience in removing executors.

Executor Removed For Conflict of Interest

Re Thomasson Estate 2011 BCSC 481 is a classic conflict of interest situation that required the court to passover one executor ,where another co executor questioned a certain transfer of property that involved the executor.Continue reading

Daughter Awarded $5.5 Million in Wills Variation Claim

Daughter Awarded $5.5 Million

The Wilson v Lougheed Estate case, 2010 BCSC 1868 is one of a few cases only in BC that deal with a large wills variation award in favour of a disinherited child, that involved a very large estate

The plaintiff was a 47 year old only child of the deceased who was left 1.4% of her mother’s $20 million dollar estate under her will. Continue reading

Reasons For Disinheriting Daughter not Accurate or Rational

Reasons For Disinheriting Daughter

Todd v MacDonald Estate 2009 BCSC 677 is an example of a wills variation claim that succeeded, on the basis that the court found that the testator’s reasons for disinheriting her daughter, were not accurate nor rational.

The testator had 2 children from 2 different marriages.

The older daughter was on good terms with her mother until 1996 when they had an argument over the testator’s refusal to to the plaintiff where her grandmother was located.

The plaintiff told her mother that she was a controlling person.

The plaintiff did not see her mother again before she died in 2007, but did speak to her on the phone several times a year.

The testator left the daughter $1, and the remaining estate of $394,000 entirely to her son.

The testator’s stated reasons in her will were “the fact that there has beeen no favorourable communication between us in any way for approximately 20 years”.

The court found that a reasonable parent would not, after the heat of the moment subsided, regard the 1996 argument, in its context, as a reason to disinherit the plaintiff.

The rationale for disinheriting the plaintiff was not valid, nor was it consistent with the discharge of the testatrix’s parental obligations.

While the son had a close relationship with his mother, it was partly because they lived in the same city.

The court awarded the daughter 40% percent of the estate and the remaining 60% to the son.

disinherited.com strongly approves of the rationale applied in this case.