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
Vancouver estate lawyer Trevor Todd has contested wills variation claims for 50 years.
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.
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
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.
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
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.'”
Wills 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
Like Cinderella, the little girl named Margaret worked to earn her room and board. She washed and swept and did what she was told. By the time she was five years old, her mother had already passed her from home to home. Now she slept behind a curtain in a dank basement and tried to be obedient. When she wasn’t, she was whipped with a switch. The woman she had been dumped with collected her baby bonus cheques, plus $20 a month from Margaret’s mother — and her mother was no more generous in death than she had been in life.
She disinherited the daughter she had given birth to and abandoned. Margaret Austin was left just $100 in her mother’s will. The rest of her substantial estate went to two daughters she had later adopted and raised. After a lifetime of quietly struggling to move beyond a childhood of abuse and neglect, Austin had enough. She decided to fight back. She contested the will.
“This wasn’t about money.” said Austin, now 66. “This was about my relationship with my mother.”
Trevor Todd, the Vancouver lawyer and estate expert who represented Austin in her case, said “People always say its not about the money. Well, actually, it is. If someone is left out, they feel really unloved.”
Money and love are difficult threads to untangle.
“Inheritance is a big deal,” said Todd. “A lot of parents just want to get one last kick from the grave. People are victimized and they are hurt.”
Since setting up his bustling website disinherited.com 13 years ago, Todd says, business has doubled every year.
Todd works with his wife Judith Milliken, QC, a former crown counsel. The duo may be experts at shaking money from unbalanced family trees, but they get the most satisfaction from cases like Austin’s where the branches of justice reach beyond the legal. Often there is more at stake than money.
Emotionally-charged issues of entitlement, greed, love, unfairness, suffering and redemption come into play.
“Marg’s story is a good example of what can happen — the active abuse of a parent against a child,” said Milliken.
As a little girl, Austin never had a birthday party or Christmas presents. She couldn’t invite school friends over. She wasn’t part of the family.
“No one ever said ‘I love you,'” said Austin.
On two or three occasions, her pretty young mother came to visit.
Each time her mother left, Austin would follow her down the street, hide behind the bushes, and watch longingly as she disappeared from site.
“I asked all the time if I could go and live with her. I never understood why I couldn’t”
Her mother came one last time — to announce she was getting married.
Margaret never saw her again. When she was 13, she developed severe dental problems from lack of proper care.
She wrote to her mother, begging for help. Her mother wrote back. She and her new husband were adopting a baby and had to paint the bedroom — there was no money to help Margaret.
The message was clear. Her mother was building a new family in another city, without her.
At 15, Margaret found the strength to leave the abusive home her mother had dumped her in and begin to forge her own life.
She married, had children and tried to forgive the mother that had forgotten her.
Then, when she was close to retirement, a phone call came from the Chilliwack RCMP, asking her to get in touch with a “half-sister.”
Austin was informed that her mother was dead — and the funeral had taken place without her.
She also learned her mother had bequeathed a substantial estate to two adopted daughters and left just $100 to her.
In the will’s codicil, her mother stated that it was because Austin had refused to communicate with her.
“It was a lie,” said Austin. “I would have been happy if she had left me an explanation, if she had said I did some really stupid things and people suffered and I’m sorry.”
The adopted sisters she had never known pressured her to sign paperwork agreeing to the terms of the will.
It just didn’t sit right with Austin. After “being thrown away like a rag doll,” she wasn’t going to sign off on her mother’s final cruelty.
Family conflict
Conflict among families over estates is a growing issue, said Todd. “We’re busier than ever.”
Part of it is demographics.
A trillion dollars is the amount of wealth Stats Canada predicts could change hands as boomers inherit from parents made flush by unprecedented real estate booms, wage gains, life insurance and investments.
When it comes to estate planning for a generation that has seen rapid social changes, that staggering dollar amount is more like a boiling point than a tipping point.
As an adult, Margaret Austin would learn the truth about why her mother gave her away: she was conceived out of wedlock.
Shame, social pressure and religion were part of what made her mother hide her away and exclude her from family, from love, education and ultimately her rightful inheritance.
Other significant social changes that spark conflict between generations include children choosing same-sex relationships, children estranged from abusive parents, “blended” families and cultural shifts.
Todd and Milliken cite an example they see all too often: In many cultures it is considered acceptable to leave the bulk of the estate to male children.
In B.C., a unique statue called the Wills Variation Act allows a spouse or child — even an adult child — to contest a will if it does not make “adequate provision” for them.
Whether you are an adult already, self-supporting, handicapped, gay, female, in favour or out with a parent, the Wills Variation Act ensures a course of action is available.
In 2006, B.C. Supreme Court Jusice Eric Rice ruled in favor of three South Asian sisters who had been bequeathed $10,000 each, compared to the $260,000 left each of the brothers.
“In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents estates,” Rice ruled in Prakash vs. Singh. He varied that will so each child got an equal share.
These situations aren’t easy, said Milliken. “With death, we have very strong emotions, and grief can very quickly turn to anger. People can easily relive childhood slights and resentments.”
As life expectancy increases, more and more inheritances will be reduced by the costs associated with elder care.
Todd said there’s a notion that “a bunch of fat malcontent boomers are dispirited because their parents are eating up their inheritance by living to 85 or 90, but the reality is quite different.”
More often, the clients seeking Todd and Milliken’s help are the victims of abusive or neglectful parents, or the families of elder abuse victims.
Robert Groberg, 44, of Aldergrove, turned to Todd and Milliken when a handyman bilked his father out of $200,000, and changed his will so Groberg got nothing.
“There was this handyman in the trailer park where my dad lived. When he got my dad drunk, he would sell him the Brooklyn Bridge.”
Groberg became suspicious of the handyman when his 72-year-old father, Eric, who struggled with alcoholism, was in hospital dying of cancer.
Groberg said, “I’ve got gloves on, I’m helping the burses with my dad and the handyman said “Your dad’s dying, I’ve got the will, you’re getting nothing and I’m going to throw your father’s ashes in the river.”
Groberg alerted the public trustee. Before they could intervene, the handyman had gained power of attorney, cashed a cheque for $200,000 and manipulated the lderly man into making a new will leaving everything to him.
“The anger I have is unbelievable.” said Groberg. “This guy had only known my father for two months.”
Todd and Milliken took his case.
Milliken often does old-fashioned detective work to investigate claims. In Groberg’s case, she knocked on doors in the mobile home park where his father had lived. There were plenty of witnesses.
“People felt very badly, here’s this older man who’s obviously been taken advantage of,” said Milliken.
There was enough evidence that they were able to settle the case without going to trial.
Blended families
Plenty of issues arise from blended families. “My experience with ‘blended families’ is the mixer got stuck,” said Todd. “They don’t blend when it comes to money and love.”
Although circumstance vary, Todd supports the “moral obligation” of parents to treat all their children fairly. He said people easily rationalize unfairness when they’re getting the lion’s share of an estate.
In some cases there may be “valid and rational” reasons to disinherit a child — severe drug additions, for example — or to leave a large portion to one more in need.
But in many cases, it is the dismepowered, like Margaret Austin, who suffer. After a protracted court battle, Marg Austin was awarded a third of her mother’s estate. Her adopted “sisters”, like Cinderella’s stepsisters, fought her every step of the way. The process reopened wounds she had worked a lifetime to heal. Was it worth it?
“I had to stand up. If my mother had ever once picked up the phone and said let’s talk, it would have been different.”
“There are probably others in my age group that are going through this. It’s not right. This was my last voice, and I was heard.”
Will Executed Before Marriage “Regrettably” Declared Void
