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Charging Clause & S.43 WESA

Charging Clause & S.43 WESA

Re Le Gallais Estate 2017 BCSC 1699 dealt with the charging clause in a will that provided that if the lawyer who prepared and witnessed the will should act as the executrix and attend to the legal work of the estate, then she would be entitled to a fee for  the usual and proper charge for such legal work.

A legal issue arose as to whether the charging clause in favour of the lawyer was valid due to the fact that the lawyer witnessed the will.

The court held that under the circumstances, the charging clause was not void by reason of her having witnessed the will and would take effect.

The charging clause stated:

If the said Constance Dora Isherwood should act as Executrix of this my will and should also attend to the legal work of my estate, she shall be entitled to the usual and proper charge for such legal work.

The court found that the deceased was an experienced business woman who would have no one that legal work was required to finalize her estate after her passing.

The deceased and the lawyer knew each other professionally before and after the execution of the will.

The court invoked section 43 ( 4) WESA that a gift to the lawyer was intended S. 43 ( 4) WESA states:

On application, the court may declare that the gift to a person referred to in subsection 1 ( a witness to the will) is not void. It is to take effect, if the court is satisfied that the will maker intended to make the gift to the person, even though the person or his or her spouse was a witness to the will.

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