League and Williams Lawyers

Author: Janice Williams

How Assets Are Distributed When Someone Dies Without a Valid Will (Intestate)

If someone dies intestate (without leaving a valid will), the courts determine the estate’s distribution. Part 3 of the Wills, Estates and Succession Act (WESA) outlines what exactly is to be done when someone dies intestate. While the distribution of the estate can be straightforward in some cases, it can be unclear or complicated in others. In this blog, we’ll highlight some of the most common family situations and how intestacy laws, as described in WESA, will operate to distribute the estate.

Intestate With a Surviving Spouse and No Children

The entirety of the estate will be distributed to the spouse.

Intestate With a Surviving Spouse and Children (with the Spouse)

In BC, the Public Guardian and Trustee of British Columbia will manage a minor’s inheritance.

The spouse receives all the household furnishings, which are the personal property usually associated with the enjoyment of the spousal home. The spouse will also receive a preferential share in the intestate estate of the first $300,000. If the intestate estate is valued less than $300,000, the spouse will receive the entirety of the intestate estate – the children will not receive anything. If the estate’s value exceeds $300,000, the spouse also receives half of the excess value, and the children equally split the other half.

For example, if the intestate estate is valued at $1,300,000, the spouse would receive the household furnishings, the $300,000 preferential share and another $500,000 as half of the remainder of $1,000,000. In total, the spouse receives $800,000. The children would equally split the other $500,000.

Intestate With a Surviving Spouse and Children (with a Different Person)

In this scenario, the distribution is the same as above except the intestate estate preferential share is only $150,000. Looking at the same example, the spouse would receive the household furnishings, the $150,000 preferential share and $575,000 as half of the remainder of $1,150,000. In total, the spouse receives $725,000. The children would equally split the other $575,000. In this case, the children receive more of the intestate estate while the spouse receives less.

If There is No Spouse, and Surviving Children

The children equally split the entirety of the estate.

If There is No Spouse or Children

The testator’s parents receive the entirety of the estate. If both parents have died, the estate goes to the parent’s children (the testator’s brothers or sisters). When no siblings or parents are alive, the grandparents receive the estate. If there are no living grandparents, the grandparent’s descendants receive the estate. Further, it can be distributed to great-grandparents and their descendants. If there are no identifiable relatives to inherit, the government will receive the estate assets.

If there are multiple people of the same level of priority, the estate will be equally distributed to them. For example, if someone dies intestate without any parents, but has two surviving brothers and one surviving sister, each sibling will receive a 1/3 share of the estate.

While the procedures the courts will go through in determining how to distribute an intestate estate can be clear in specific circumstances, it’s always best to write a valid will. If you need help drafting your will, contact an experienced estate lawyer today. We can ensure that your estate is distributed exactly as you want upon your passing.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

April 28, 2021
Probate Notice Period: Who needs to be notified?
Before administering an estate, the executor usually must file for probate and receive court approval. Probate confirms the will’s validity and grants the executor authority over the estate assets. The process applies to any estate with a value exceeding $25,000. Before beginning to administer the estate’s assets, the executor must notify specific people about the probate filing. This is known as the probate notice period, and is important for those who may wish to challenge a will’s contents.

Who is Entitled to Notice?

Per rule 25-2 of the Supreme Court Civil Rules, the executor who intends to apply for probate must notify interested parties at least 21 days before they submit the probate application. Further, the executor must provide a copy of the will for each person who is to be notified. The people who are entitled to this information and a copy of the will include:
- All executors and alternate executors of the will,
- All beneficiaries of the will, and
- Anyone who would have been an intestate successor, assuming a will was not written and the estate was larger than what the spouse would inherit.
Intestate Estates (Dying Without a Will)

When you die without a will, your estate is intestate. Your assets are distributed according to the laws of intestacy, and there is an established order of priority for individuals who become your successors. Depending on if the will-writer has a spouse or children, the intestate successors can vary. For more information, read our blog on how assets are distributed in intestacy. Anyone who would be entitled to parts of the estate in intestacy are entitled to a notice of probate.

In cases where the deceased didn’t write a valid will, the list above is not fully relevant. While there isn’t a will, the estate will likely still go through probate. The person’s estate must be administered and distributed even in intestacy. The people entitled to a probate notice for an intestate estate include:
- Anyone who is an intestate successor, assuming the estate is larger than what the spouse will inherit and
- Any creditor who is seeking greater than $10,000 from the estate.
What This Means for Will-Writers

Any will that is granted probate becomes public record for any interested person to view.

For will-writers, this shouldn’t be a concern unless you had plans to disinherit someone from your will. People who want to disinherit an estranged child usually assume that they can do this in a private manner and without the child knowing until after the estate is distributed. This usually isn’t the case as the executor will notify the child of the probate application. From there, it’s safe to assume the child will challenge the will if they’ve been unfairly disinherited. See our blog on invalid (and illegal) reasons for disinheriting a child.

What This Means for Beneficiaries

Sometimes, beneficiaries of a will don’t know that they’re a beneficiary and worry whether they’ve been left out of the will. If you receive no notice of probate, and you’re not someone who falls under the intestacy succession plan, you were likely not named as a beneficiary in the will. However, if you would have been entitled to a portion of the estate if it had fallen into intestacy, you could be someone with standing to bring a claim against the estate if you were excluded from the will.

What This Means for Executors

Executors need to be aware of these requirements and ensure they know who is entitled to a notice of probate. The estate administration process can be a lengthy journey, and the last thing you want to do as an executor is further complicate the process.

If you’re unsure who will be entitled to a probate notice for your estate, contact an experienced estate lawyer today. We can help to clarify how the estate administration process will be handled, ensuring that there are no surprises or unexpected results after you pass away.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
April 28, 2021
Unconscionable Procurement: Voiding a Gift
As part of their estate plan, people often elect to give inter-vivos gifts to their loved ones. This can help to minimize probate fees, and to allow loved ones to enjoy their inheritance earlier. Many testators may not realize that there are several reasons the courts may deem an inter-vivos gift invalid. For example, a gift of real estate may be considered imperfect if it was not officially registered with the Land Title and Survey Authority of BC, making the gift void.

A less common reason for voiding an inter-vivos gift is the doctrine of unconscionable procurement. If someone doesn’t fully understand their actions when making an inter-vivos gift, the doctrine of unconscionable procurement can make the gift voidable. This equitable doctrine protects vulnerable gift-givers from being exploited.

When the Doctrine of Unconscionable Procurement can be Enacted

A gift-giver must have an intention to make a gift in order for the gift to be valid.

The doctrine of unconscionable procurement is intended to protect against undue influence. It applies when a gift transfer is arranged by the recipient and doesn’t reflect the giver’s true intentions. In these cases, the gift giver may not fully understand what’s happening or the nature of the transaction. It’s important to note that a successful claim doesn’t automatically void the gift—it makes the gift voidable.

In order to have a successful unconscionable procurement claim, there are two primary elements that must be found:
1. One person receives a gift from another; and
2. The recipient of the gift was actively involved in the process of receiving the gift, and arranging the transfer.
When these criteria are met, it raises suspicion that the gift-giver may not have fully understood the gift. At this point, the burden of proof shifts to the defendant. They must show, on a balance of probabilities, that the gift wasn’t unconscionably procured. This means that they must provide evidence which demonstrates that it is more likely than not that the gift giver understood the nature and consequences of the transfer, and intended to make it.

A Case Which Demonstrates This Doctrine

In the case of Gefen v. Gaertner (2019), a handful of gifts were voidable under the doctrine of unconscionable procurement. The deceased mother had elected to give more than 50% of her estate in inter-vivos gifts to one of her three children. The two children decided to challenge the transactions under the doctrine of unconscionable procurement. As described in the case, unconscionable procurement requires that a “person who obtains a benefit from another by voluntary donation must establish that the donor did so voluntarily and deliberately, knowing what they were doing.” The two children were able to successfully prove the two elements of unconscionable procurement, showing that their mother did not make these gifts voluntary and deliberately.

While not always the case, it is common for elderly people to give gifts that have been unconscionably procured. If the recipient of the gift is overly involved and pushing to receive a gift, this could be grounds for an unconscionable procurement claim.

If you or a loved one have been wronged through an unconscionably procured gift, contact an experienced estate lawyer today. We will help to ensure that you receive the inheritance you’re entitled to, even if that means making the gift voidable.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
April 21, 2021
Hotchpot Clause: Unpaid Loans Causing Estate Disputes

It’s not uncommon for people to make loans to their family or close friends. Common reasons include helping with a down payment on a house or to kickstart a new business venture. However, many people don’t consider what would happen if the lender dies before the borrower repays the loan. To avoid uncertainty, will-writers who are owed a debt from a beneficiary of their estate can include a hotchpot clause in their will.

What is a ‘Hotchpot’ Clause?

A hotchpot clause requires the executor to consider any debts or advances owed by a beneficiary when administering the estate. Essentially, the clause ensures that any assets lent to a beneficiary before the testator died do not have an unfair effect on the other beneficiaries of the will. Typically, the beneficiary who had the loan will have their inheritance reduced by the value of the balance when the testator died. This helps to ensure fairness for beneficiaries who have an equal share in the estate, but did not receive equal assistance from the will writer during their lifetime.

How Unpaid Loans Can Create Estate Disputes

To fully understand this problem, let’s consider the following example:

Imagine a father has three children and wants to divide his $900,000 estate equally among them. One of his children borrowed $100,000 from him before he passed away. The father’s will includes a hotchpot clause that requires the loan to be factored into the distribution. Without the hotchpot clause, each child would receive $300,000.

With the clause in place, the value of the estate would be considered $1,000,000 after the child ‘repaid’ the loan. Each child’s share would be valued at approximately $333,333. However, the child that borrowed money would have their inheritance reduced by the balance of the loan. In this example, they would receive a smaller sum of $233,333. This ensures fairness amongst the siblings by accounting for the money already received by the child who had the loan.

Many people in a similar scenario might assume this common-sense approach would be taken. However, without documentation in the estate plan, it’s unclear which solution the father had intended in his will. If it is not clear how the will writer intended the debt to impact a beneficiary’s inheritance, disputes can arise. It’s important that testators who have lent money to a beneficiary make their plans for the debt clear in their will.

Using a Hotchpot Clause to Prevent Disputes

A hotchpot clause’s purpose is to help ensure fairness and equality amongst beneficiaries.

A hotchpot clause ensures the executor accounts for any amounts a beneficiary received from the will-writer before their death when determining their inheritance. Usually, the clause will accumulate the value of all of the estate’s assets, including any debts owed to the estate. The goal of a hotchpot clause is to equalize the overall benefit that each beneficiary receives from the estate.

Loan vs. Gift

In general, if you’re going to issue a loan, whether it’s to your own children or to a third party, you should always create a written agreement. Without a contract, the debtor could argue that the loan was intended as a gift. In this case, the hotchpot clause would likely not be relevant, as the gift would have no impact on the estate as an inter vivos gift and the debtor would have no obligation to repay the gift. A written contract specifying that the money transfer was a loan, not a gift, reduces litigation risk during estate administration. With a written agreement and a hotchpot clause, will-writers can ensure no one unfairly benefits from the loan at the expense of other beneficiaries’ inheritance.

If you’re unsure how to include a hotchpot clause in your will, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

April 16, 2021
Splitting Liability: When more than one party is at fault for an injury
With the summer (and boating) season fast-approaching, Canadians should be reminded to always be cautious when out on the water. Sadly, improper operation of a boat can easily lead to injury. At Sylvan Lake, Alberta in 2004, a teenaged girl who was tubing behind a 17 foot power boat critically injured her foot. The courts were asked to determine liability for the injury – was it the boat operator, the boat rental company or the girl herself?

The Circumstances Leading to the Injury

The teen was excited for a day at the lake in July as her friends had arranged for a man, Alexander, to rent and operate a boat for the day. Alexander signed the documents and was instructed by the boat rental company, Three Boys, on how to operate the boat. He was taken onto the boat by one of the employees who showed him “how to start the boat, trim the motor, and put the boat into gear.” The group of six spent their day taking turns tubing while Alexander operated the boat.

After some time, Alexander wanted a turn on the tube, and one of the other friends, Majouga, offered to drive while Alexander tubed. Majouga had his boating license and had experience with boating. Majouga did not sign the boat’s rental agreement like Alexander had. Majouga claimed that while Alexander was being instructed at the dock, he could hear everything that was being said; however, he was not on the boat at the time and was not actively instructed on the use and operation of the boat like Alexander.

Boats can be lots of fun in the summer with friends; however, they must be operated safely and carefully.

The teen that ultimately made the injury claim, Wozniak, was on the tube was Majouga was still operating the boat. While Wozniak was tubing, Majouga lost control of the rudder as he tried to slow down. The tube was coming dangerously close boat and Wozniak decided that she needed to jump off the tube in order to avoid contact. At the same moment she jumped, Majouga had also decided to turn the boat, away from the tube. Unfortunately, Wozniak and Majouga both went in the same direction. Wozniak’s foot struck the propeller and was “nearly severed in two.” Wozniak screamed in pain and Alexander immediately pushed Majouga to the side and shut the boat off, stopping the propeller.

As a result, Wozniak suffered irreversible damage to her foot. She is unable to walk normally and cannot walk or stand for extended periods of time. She is also unable to work a job that requires standing for long periods of time. Wozniak began a lawsuit against the boating rental company, Three Boys, the boat operator, Majouga, and the original boat driver/renter, Alexander (Wozniak v. Alexander 2008).

Splitting the Liability – Why the Rental Company was also Liable

Majouga accepted partial liability for the injury; however, he believed that the boat rental company, Three Boys was also partly at fault; Three Boys owed a duty of care to the boat renters. In the moment of the incident, Majouga claims that he “froze up.” He contemplated the following options:
1. Shifting the boat into neutral – he elected not to do this as he didn’t know if this would stop the propeller.
2. Shutting the engine off entirely – he did not do this because he didn’t know what effect this would have.
3. Steer the boat to avoid the tube – he believed this to be the best option.
Majouga claims that he froze in the heat of the emergency because he did not know the proper course of action. “Freezing up” was deemed not something that could have been anticipated and could have been prevented with adequate instruction. The judge stated that “this was a direct result of not having been told that in such an emergency he should kill the engine.”

It was ruled that this accident could have been avoided if Majouga was given proper instruction by Three Boys. The judge used the ‘but for’ test to determine the factual causation of the accident. The judge deemed that, but for the inexperience of Majouga and the absence of appropriate instruction, this accident would not have happened. While the circumstances leading up to Majouga freezing up were not foreseeable, if he was given the proper instructions, he would have been equipped to act and prevent injury.

Three Boys defended the claim by claiming that Majouga was not someone who should have been driving the boat in the first place. They had Alexander sign off on the boats’ rules, prior to departing – Majouga did not read nor sign. The judge explained that Three Boys should have either explicitly told Majouga that he was not to operate the boat or have had him sign the documents. They were aware (or ought to have been aware) that Majouga had his boating license and it was reasonably foreseeable that he would operate the boat during the day.

The judge ruled that both Three Boys and Majouga were equally liable for the injury sustained by Wozniak. She was awarded $228,618 for damages, split evenly between the defendants. The claim against Alexander was dismissed.

Look for more information? Read our page on the basics of marine law in BC.

Have a question about marine law or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
April 12, 2021
Name changes and inheritances – what happens when a will uses an outdated name?

Name changes are common, whether due to personal reasons or marital status. If someone has changed their name and is listed in a will, they might wonder how it affects their inheritance. In a lot of cases, the answer to this question comes down to how the will was worded.

Although the law acknowledges name changes, many wills are vague, causing confusion about the intended beneficiaries. The ultimate goal of the law is to execute the intentions of the will-writer. As long as the intended beneficiary is identifiable, they will receive their inheritance, even if their name has changed.

When a Beneficiary’s Name Change is not a Problem

The key lies in the will’s wording and the clarity of the intended beneficiary. Experienced lawyers ensure precise wording to prevent confusion due to name changes. Self-made wills often lead to issues because individuals lack legal expertise. Without professional guidance, will writers often can’t foresee problems with their drafting, or know how to avoid them.

Sometimes, executors can’t locate a beneficiary who has changed their name, and their gift may lapse.

When a Beneficiary’s Name Change is a Problem

Estate administration becomes challenging when a will’s wording doesn’t clearly identify the intended beneficiary. Executors must verify the beneficiary’s identity, especially if their name has changed. An executor can be asked to verify this under oath. If it’s unclear who the will-writer intended to name in their will, the courts may rectify the will to cure the error, or in some cases, rule the entire will invalid. Sometimes, executors misinterpret the testator’s intentions, leading to unintentional and incorrect distribution of the estate.

Tips To Avoid This Problem

Ideally, will-writers will update their wills whenever someone named in the will changes their name, or when any other changes which may impact their estate occur. While this is a great way to prevent complications in the estate’s administration, there are workarounds for those who are not able to frequently update their will. For each beneficiary named in the will, the will-writer can include their relationship with each other, their last known address and their date of birth. With all this information, executors can be absolutely certain who the will-writer intended to name even if the person has changed their name.

Additionally, when a beneficiary changes their name, a codicil can be made by the will-writer to prevent any confusion. A codicil is a document written with additional information to supplement a will. This is easier to write as the will-writer does not have to make a new will in order to add details to their will which already exists.

Reminders for Will Writers

Experienced will-drafting lawyers can ensure that your will is specific enough to allow for name changes without causing ambiguities. Lawyers sometimes prepare notes that specify the relationship with each beneficiary, when the will fails to specify this. If you need help preparing your will, or making an amendment to it contact an experienced estate lawyer today. We can help guide you through the will-writing process, ensuring that loved one’s name changes will not affect how the law handles your will. Alternatively, if you are a beneficiary of a Will whose change of name has resulted in disinheritance, our estate dispute lawyers may be able to assist you in getting the inheritance that was intended for you.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

April 7, 2021
Morally Binding and Legally Binding Will Provisions

When people choose to write their own wills without the assistance of a professional, it’s not uncommon for there to be vague, non-legally binding provisions in the will. Words and statements that are expressions of wishes are precatory provisions. Precatory provisions in a will are not legally binding, rather they are morally binding. In contrast a mandatory statement in a will is legally binding.

As an estate executor, it’s important to distinguish between provisions that are legally binding and those that could be considered morally binding. A statement in a will that is legally binding must be followed by the executor. On the other hand, a precatory statement is not something that the executor must adhere to, rather it is considered to be a strong suggestion. In this blog we’ll take a look at the differences between the two and how the courts will distinguish between them when it’s unclear.

What’s the Difference?

Even though the differences, by definition, are clear, it can be extremely difficult to distinguish in some cases.

The most common uses of precatory phrases arise when the will-writer “requests,” “wishes” or “wants” something to happen in their will. Precatory statements are a recommendation where the will-writer is suggesting something, and has not expressed an intent to make their statement legally binding. On the contrary, a mandatory statement would use words such as “must” or “shall”. In mandatory statements, are conclusive. The writer isn’t making a polite request, rather they are telling the executor exactly what is to be done.

What’s the Difference, Legally?

In a precatory statement, the executor has no legal duty to follow the directions of the statement. Further, the courts have no ability to enforce the provision. This is different from a mandatory statement where the executor is required to follow it and the courts can enforce it when the executor fails to follow the provision. Let’s look at some examples to help clarify.

“After my death, I hope to be cremated and the ashes scattered across the gardens of my home.”

As the executor of the will, it’s clear that this is a precatory phrase because of the word “hope”. Morally, the executor should follow this wish and do as the will-writer has asked; however, if it were extremely difficult for the executor to gain access to the gardens as the home had been sold, for example, they would not be obligated to fulfill this wish. The executor can make the decision to cremate the body, but scatter the ashes in a different location. The executor could also choose to have the body buried in a graveyard – it’s up to their discretion. Now, let’s look at an example of a mandatory statement.

“For my niece, she shall receive $10,000 in the form of a trust fund wherein she receives $1,000 every year from the date of my death until the account is emptied.”

By using the word “shall,” the executor is required, by law, to put the funds into a trust account and have it distributed to the niece as described. This is clearly a mandatory, legally binding statement. Where it starts to get complicated is when the statement is vague, but not vague enough to be considered an obviously precatory, or morally binding, statement.

How the Courts Will Differentiate

Aside from the obvious cases, where the language used make it clear whether the provision is a morally binding or legally binding, the courts must analyze the likely intentions of the will-writer.

“It is my desire that my house shall be sold to my daughter for $855,000.”

This phrase contains elements of both precatory and mandatory statements. As an executor, you could make the argument for both types: (1) “it is my desire” is a clear indication of a precatory or morally binding phrase, a mere suggestion, but (2) “shall be sold” is an indicator of a mandatory statement, a legally binding request. In deciding the difference, the courts have a number of approaches that they might use.

The courts might look at other provisions of the will and the language used by the will-writer to try and give some hints as to what was meant by the statement. Using the same example, perhaps the will-writer says “it is my desire,” in every provision of the will, even in clearly mandatory statements. The word “shall” and an exact price of $855,000, along with the evidence from past language in the will could be enough to rule this as a mandatory statement.

The significance of the provision and relationship between the will-writer and beneficiary in question can also play a role in the courts decision. As this provision is for the will-writer’s daughter, it’s likely that they have a close personal relationship. By this logic, it seems reasonable to assume that they had made an informal agreement while the will-writer was still living. The vague language could appear to be disguising a mandatory statement. The circumstances surrounding the gift play an important role and won’t be overlooked by the courts. In the end, the courts are always attempting to determine and enforce what the will-writer intended by the statement.

The best way to avoid confusion between provisions in your will is to contact an experienced estate lawyer to help draft your will. If you’re an executor who can’t differentiate between a precatory or mandatory statement in the will you’re administering, we can help. Alternatively, if you’re a beneficiary who is frustrated by an executor who has failed to undertake their responsibilities, we can also help.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

March 31, 2021
Residency, Domicile & Estate Law
People are increasingly mobile – many are born in one country, go to school in another, and retire abroad. After living in a number of different countries, legally, where is home? While the answer might seem obvious to you, this question can have huge implications when it comes to estate law. The place of one’s permanent home in legal terms is called their domicile. This determines which country or province’s laws will apply to your estate when you pass away. Whether you know where it is or not, everyone has a domicile, and only one domicile.

A person’s domicile is not always simply the place where they were born or the place where they currently live. Someone might have been born in one country, but lived somewhere else for their entire life. On the other hand, someone might move to a different country for school, with no intentions of staying there. Because of this, courts must consider various factors to determine a person’s domicile. A recent case in BC questioned a deceased’s domicile, asking the courts to determine where his domicile really was.

What Your Domicile Means For Your Estate

You are never domiciled to Canada per se; rather you are domiciled to an individual province because each has different laws.

The case of Sato v. Sato (2018) highlighted the impacts that a domicile has on an estate law case. Sato was born in Japan and lived in Toronto, Vancouver, the Cayman Islands, Guernsey and Luxembourg throughout his lifetime. He typically returned to BC every couple of years while he was living abroad.

In 2009, he settled down and moved to Luxembourg which is where he lived when he eventually died in 2015. Shortly after he moved, in 2011, he visited BC where he then wrote his final will. Later, in 2013, while living in Luxembourg, Sato got married. This was where the controversy arose, as the courts looked to determine where he was domiciled at the time of the marriage. Since this was before the Wills, Estates and Succession Act was enacted, if Sato was domiciled in BC, the marriage would revoke his will. If he was domiciled in Luxembourg, his will would not be revoked.

How Domicile is Determined

The courts in Sato v. Sato (2018) used two factors when determining someone’s domicile:
1. Where the individual resided at the time of death; and
2. The intention to make the place of residence a permanent home, indefinitely.
Since Sato lived, worked and filed taxes in Luxembourg, it was clear to both parties of the case that he was a resident of Luxembourg. Commonly, as was the case here, it was the second point of the criteria that was in dispute. The courts questioned whether “the intention of permanently settling there … in the sense of making that place [one’s] principal residence indefinitely” was apparent for Sato and his home in Luxembourg. It was shown from past records that Sato actually had an intention of retiring in Canada. Because there was no evidence to the contrary, it was decided that even though he resided in Luxembourg, he had no intention of having a permanent home there. It was ruled that Sato’s domicile was in BC and as a result his will was revoked because of his marriage in 2013.

No Intentions of Permanent Residency

Sometimes, it’s impossible to determine whether an intention to make somewhere an indefinite, permanent home is evident. When this is the case, the courts will use the domicile of origin, in other words where the person was born. A recent case in Saskatchewan, Vanston v. Scott (2014), featured a son challenging a father’s will, with the son claiming that father was actually domiciled in BC. The defendant argued that the deceased was rightfully domiciled in Saskatchewan. In the end, the plaintiff could not show the deceased had the intention of returning to BC, to it his eventual permanent home and the defendant was unable to show that the deceased had not abandoned Saskatchewan as his permanent home. The courts used the domicile of origin to determine the correct jurisdiction of his estate which was neither Saskatchewan nor BC, but rather his birth province of Alberta.

The location of someone’s domicile can be confusing as it can change often throughout their lives. If you’re unsure where your domicile would be and want to make your intentions of permanent residency clear, contact an experienced estate lawyer today as it can have significant impacts on the administration of your will.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
March 26, 2021
Who is Entitled to Receive a Copy of the Will?
Although wills are private documents, there are a number of people who may be entitled to a copy. Executors are responsible for distributing these copies, as they are in possession of the original will. However, many executors are unsure who is entitled to a copy of the will. Unfortunately, it’s not uncommon for executors to make mistakes in distributing copies.

Before the Will-Writer has Passed Away

Before the will-writer has died, they are the only person legally entitled to a copy of their will. The will-writer can choose to keep the will confidential, but they can also give copies to anyone they would like. Even though it’s fully in the will-writer’s rights to not release any copies of the will, it’s recommended that the executor is either given a copy or knows exactly where the original will is to prevent any confusion upon the death of the will-writer. The executor will need to be in possession of the will in order to administer the estate. Once the will-writer has passed away, several different people become legally entitled to receive a copy of the will, should they request one.

After the Will-Writer has Passed Away

In BC, a will that has been granted probate becomes public record for anyone to see.

After the will-writer has passed away, the executor of the will is usually the person who is given the original copy of the will, and they will be responsible for giving out copies of the will to those who are entitled.

People who are entitled to a copy of the will in BC include:
- The executor of the will,
- Beneficiaries of the will (those who will inherit a part of the estate),
- People not named in the will, with a minor child as a beneficiary, and
- People who are owed money by the testator.
It is common for people to be unsure if they’re a beneficiary of the will following the passing of a testator. In this case, the executor must disclose if they’re a beneficiary or not.

Some additional scenarios when people might be legally entitled to receive a copy of a will include:
- Professionals involved in the estate administration such as financial advisors or lawyers,
- Immediate family members of the testator,
- People named in the will, who are not beneficiaries,
- People named in older versions of the will, but not in the final will, or
- People who did not, but would have inherited part of the estate if the testator failed to write a will.
Reminders for Interested Parties

If you believe that you should be entitled to a copy of a will, but don’t fit into this list, you may still be able to receive a copy. If you can demonstrate to the courts that you have legally valid reason to be given a copy of the will, you can be granted entitlement to a copy.

For those entitled to a copy of the will, it can sometimes be easiest to ask a layer who is in possession of a copy of a will when trying to obtain a copy. It is common for executors to be unsure of who is entitled to a copy of a will and who is not. Estate lawyers will understand this and can provide you with a copy if you’re legally entitled.

If you believe you’re entitled to a copy of the will, but the executor is refusing to provide one, you may need to issue a subpoena to receive a copy. A subpoena forces an executor to deliver a copy of the will to you. Contact an experienced estate lawyer today to begin solving your estate-related problem sooner rather than later. We will ensure that you receive a copy of the will if you’re entitled to it.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
March 9, 2021
What Can Void Gifts in a Will?

Many people assume they can gift from their estate in their will in any way they please. This isn’t always the case. Sometimes, the courts can rule a gift is void and modify a will. The first exception is for unfairly disinheriting a child or spouse. A will-writer must make adequate provisions for the support of their spouse and children. If they don’t, the courts can modify the will if there aren’t valid reasons for disinheriting.

Another exception is when a gift benefits an illegal activity or organization, or is contrary to public policy. It can be difficult to understand exactly what public policy is and what it means to go against it. A case in New Brunswick helps to clarify when courts will void gifts on these grounds.

A Gift Against Public Policy

In the case of McCorkill v. Streed (2014), the will-writer named the entirety of his estate to a white supremacist, Neo-Nazi organization in the US. The will-writer’s sister challenged the will, claiming it was against public policy. She sought to have the gift (approximately $250,000 CAD) to this organization ruled void.

The courts went through a thorough investigation of the organization’s visions, goals, history, and affiliations. Even though this organization was based in the US, the courts needed to be certain that it didn’t violate the Criminal Code. In determining the usage of the term “public policy”, the courts quoted a past case in stating that:

“The term ‘public policy’ cannot be comprehensively defined in specific terms but the phrase ‘against public policy’ has been characterized as that which conflicts with the morals of the time and contravenes any established interest of society. Acts are said to be against public policy ‘when the law refuses to enforce or recognize them, on the ground that they have a mischievous tendency, so as to be injurious to the interests of the state, apart from illegality or immorality’.”

Understanding the Law

Courts are always careful in public policy cases to not associate personal values with the values of the public.

Basically, actions which are injurious to the interests of Canadian citizens is against public policy. Upon analysis, it was clear that the organization practiced activities clearly contrary to public policy by printing hate-inspired, racist propaganda. Per section 319 of the Criminal Code of Canada, promoting hatred against an identifiable group is a criminal offence. The case identified if an estate gift to an organization whose purpose was against public policy is against public policy. In this case, the will-writer had not specified to use the funds for activity that was against public policy.

The courts decided that it was clear the organization’s sole purpose was contrary to public policy. The only way this gift could be allowed was if the organization demonstrated that the organization had changed since creating their foundational documents. It was made clear that the will-writer “stood for” the actions and ideologies of the organization. His gift was and clearly intended to promote these actions. The will-writer was ruled to have died intestate as this gift was void.

What Does This Mean for Future Void Gifts?

The Supreme Court of Canada later rejected an application for appeal of this case. This makes it clear that people can’t name hate organizations as beneficiaries of their wills in Canada. Essentially, giving estate assets to an organization that practices acts of hatred contradict public policy in Canada.

A common response to this case is, why? People are often confused as to why the law restricts people from disposing of their estate as they see fit. Ultimately, it’s your estate and you should be able to do whatever you wish with it, right? The reason is because Canada’s Criminal Code has the purpose of minimizing crime in Canada. Giving funds to hate organizations, such as the one in McCorkill, promotes their operations and keeps the organization alive.

If you’re an executor of a will with gifts you believe are contrary to public policy, contact an estate lawyer. We can help to identify whether the gift should be void and possibly begin the challenge process with you.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

February 26, 2021