League and Williams Lawyers

Category: Estate Disputes

  • Predatory Marriages: Mental Capacity Required to Marry

    Predatory Marriages: Mental Capacity Required to Marry

    Due to the nature of estate laws, it’s not as rare as one would hope for there to be predatory marriages in BC. The Wills, Estates and Succession Act specifies that any spouse must make the adequate provision for the proper maintenance and support for their spouse’s life in their will. When you marry someone, you become entitled to a portion of their estate. A predatory marriage is when someone takes advantage of an incapable person by acting as a loving spouse, doing so with the intention to receive a portion of their estate. Usually, victims of a predatory marriage are elderly and have accumulated a large estate.

    What a Predatory Marriage Looks Like

    In a non-predatory marriage, there are typically forms of love, affection, friendship and honesty between the spouses. A predatory marriage exhibits a false sense of these traits, based upon lies where the predator is looking solely for personal gains (through their spouse’s estate). The predator is usually able to manipulate the spouse when they’re in a state of incapacity and poor cognitive abilities.

    Because a predatory marriage is a form of manipulation and dishonesty, the predator typically tries to keep everything private or even secretive. They will usually plan for a secret marriage so that none of the elderly’s family members are aware of what is happening until it has already happened. In most scenarios, to an outsider looking in, it can be rather obvious when a predatory marriage has happened.

    While not always the case, the predator in a predatory marriage is often the spouse’s primary caregiver. The caregiver can manipulate their dependent spouse, who may marry the predator without understanding the implications. Predators in predatory marriages are often people who have a close relationship with the incapacitated person.

    Capacity to Marry

    BC courts previously viewed marriage as a simple contract that almost any adult could easily understand. This meant that one did not need a high mental capacity in order to lawfully contract to marriage. Recently, the courts have taken a different approach, noting that one must have a certain degree of mental capacity to enter into a marriage. There is a presumption that after marriage, both spouses had the capacity to marry at the time of the marriage. The burden of proof is on the person claiming mental incapacity in a court case.

    The courts may apply the following test to determine capacity to marry:

    1. Do you understand who you are marrying?
    2. Do you understand the nature and consequences of the marriage?

    If the court finds that one spouse lacked the capacity to contract into marriage, they void the marriage. This means the courts consider the marriage to legally have never happened.

    BC Courts Confirm Marriages Can Be Ruled Void

    The recent BC case of Devore-Thompson v. Poulain (2017) demonstrates an instance where the courts will rule a marriage void ab initio. The courts identified that the capacity to marry has a lower threshold than for managing one’s own affairs, making a will or instructing counsel. Further, “the authorities suggest that the capacity to marry must involve some understanding of with whom a person wants to live and some understanding that it will have an effect on one’s future in that it will be an exclusive mutually supportive relationship until death or divorce.” This established the test for mental capacity to marry.

    The victim in this predatory marriage had Alzheimer’s disease and was rapidly deteriorating in terms of their mental health. She had entered into a predatory marriage with a mere stranger after he manipulated her into a false relationship. It was determined that the victim was likely unaware of the wedding and was prompted throughout the process to do what she was told. The courts ruled that she was not able to form a lifetime commitment to this person nor did she have a grip on reality. Due to her dementia, the court determined she lacked the necessary understanding of marriage, and voided the marriage.

    The Legal Test for Capacity

    The test for mental capacity is an important test in most estate-related matters. The test is commonly used for determining if the will-writer has testamentary capacity in order to create a valid will; however, this case shows that mental capacity must be present at the time of marriage as well. In order to have the capacity to marry, you must understand the effect it will have on your future and understand whom you’re marrying. Although this threshold is lower than for most other contracts, you must meet it to marry lawfully.

    If you’re suspicious that a loved one might be unknowingly entering into a predatory marriage, contact an experienced estate lawyer today. We can help to ensure that your loved one’s estate is distributed exactly as they’re intending, without any undue influence affecting their judgement.

    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.

  • Testamentary Capacity: The Basics

    Testamentary Capacity: The Basics

    Testamentary capacity describes the mental ability required to create a valid will. When individuals draft their wills, they must be of sound mind and capable of understanding the implications of their decisions. This is crucial in estate planning. It ensures that wills accurately reflect the testator’s wishes and mitigate risk of estate litigation.

    Assessing capacity can be complex. The courts can be willing to find testamentary capacity in some cases where a person isn’t able to, for example, make financial decisions for themselves. Because wills drafted by a person lacking capacity are invalid, will writers and their beneficiaries should recognize the signs of lack of capacity.

    What is Testamentary Capacity?

    Testamentary capacity is the legal standard for having the mental ability to make or change a will. When someone drafts their will, they must meet specific criteria to ensure its validity. To have testamentary capacity, a will writer must have an understanding of the following.

    Nature of a Will

    •  The testator (the person making the will) must understand the purpose and effect of creating a will.
    • They should comprehend that a will outlines how their assets and property will be distributed after their passing.

    Extent of Their Property

    • The testator needs to be aware of the nature and extent of their property.
    • They must understand the extent of the assets which beneficiaries stand to inherit from the estate.
    • This includes knowing what assets they own, such as real estate, bank accounts, investments, and personal belongings.

     Beneficiaries and Relationships

    • The testator must recognize the people who stand to inherit from the will.
    • Understanding family relationships and friendships relevant to the will is crucial.
    • They must understand the nature of disputes which may arise, particularly from those left out of the will.

    Coherent Planning

    Testamentary capacity requires a will writer to understand these issues, and use that understanding to create a coherent estate plan. When the courts have reason to believe that a person didn’t have testamentary capacity, they can invalidate a will or reverse gift transfers.

    The Importance of Testamentary Capacity for Will Writers

    The general aim of the Wills, Estates and Succession Act and the BC courts that enforce it is to give effect to genuine, valid wills that reflect the will writer’s testamentary intentions. For this reason, the courts are empowered to cure deficiencies in invalid wills to ensure its writer’s wishes are respected. However, the courts can also invalidate a will that was written by someone lacking testamentary capacity for the same reasons. If you write a will without having the testamentary capacity to do so, it may not reflect your genuine testamentary intentions and may not be upheld.

    Ensuring Your Will is Valid and Enforceable

    To be valid in British Columbia, a will must be in writing, signed by the testator and by two witnesses. However, wills which meet these formal requirements can still be considered invalid if they were written by testators lacking testamentary capacity. 

    To ensure that the administration of your estate aligns with your wishes, it’s important to keep your will updated while you maintain testamentary capacity. Further, a robust estate plan should include plans for who will manage your legal, financial, healthcare and lifestyle decisions in the case that you lose capacity unexpectedly. Remember, you can lose testamentary capacity unexpectedly at any time due to serious injury or illness. 

    Mitigating Risk of Estate Litigation

    It is not uncommon for estate litigation to arise when a beneficiary or interested party has suspicions that the will writer lacked testamentary capacity when they executed their will. A common example of this type of wills variation challenge happens when a will writer, lacking testamentary capacity, creates changes to their will without professional assistance. This can often take the form of a handwritten codicil or notes left in their estate home prior to their death instructing changes to their existing estate plan.

    When beneficiaries or interested parties (including past beneficiaries, spouses or children) have suspicions regarding the will writer’s capacity to make those changes, they can make a wills variation claim. Though the outcome of the claim may be that the most recent will from before the writer lost capacity is enforced, the process is still costly to the estate. Will writers should endeavor to prevent possible litigation arising as it can lower the overall value of their beneficiaries’ inheritances and significantly delay the administration of their estate. 

    It’s important to understand that loss of testamentary capacity is not always permanent. Older will writers may experience periods of testamentary incapacity due to health issues or medications they take, but can regain capacity later. Will writers should execute all updates and changes to their will with an estate lawyer, who can ensure that you have testamentary capacity and that your changes will be upheld.

    The Importance of Understanding Testamentary Capacity for Beneficiaries

    Beneficiaries should also understand the significance of testamentary capacity and recognize signs of incapacity for several reasons:

    Protecting Their Interest in the Estate

    Beneficiaries have a vested interest in the validity of a will that they stand to inherit from. Beneficiaries who recognize signs of incapacity can raise their concerns before the death of the will writer, potentially preventing future estate litigation. Further, if a will writer who lacks capacity makes inter vivos gifts of estate assets during their lifetime, beneficiaries can provide valuable evidence should a dispute arise concerning the transfers.

    Challenging Invalid Wills

    Beneficiaries and interested parties need to know when they can raise concerns over a will’s validity. If they have grounds to suspect the will writer lacked capacity when executing their will, they can seek legal help to raise a wills variation claim. Recognising the signs of testamentary incapacity early can help beneficiaries to protect their inheritance.

    An Example From Case Law

    Testamentary capacity is important to understand because the mere presence of cognitive deterioration or illness when a will was written doesn’t necessarily mean the will is invalid. The BC Supreme Court recently discussed this distinction in Nykoryak v. Anderson (2017).

    The case concerned the estate of Ivan Hlynsky. His son and grandaughter, Bill and Mariya, applied for an order from the courts declaring that the most recent version of Ivan’s will was invalid due to lack of capacity. Ivan drafted a will in 2006 leaving the residue of his estate to his son Stephan, and Mariya. Ivan did not include his other children, Bill and Natalie, as beneficiaries of the estate. Before his death in 2015,  Ivan created a new will excluding Mariya. He left the residue to his children Natlie and Stephan.  

    Bill and Mariya challenged the will on the grounds of testamentary incapacity because at the time, Ivan was experiencing cognitive decline including some memory loss and confusion. He was also having significant difficulty with his hearing.

    The Court’s View

    The court reviewed evidence from Ivan’s will drafting lawyer to determine if he had testamentary capacity at the time. Despite his cognitive decline, it was found that he understood:

    • The nature of a will;
    • The nature of his property disposed of in the will; and
    • The people who stood to benefit from the will.

    Further, a medical examination from shortly after the will was executed was reviewed by the court. The examination found that Ivan was experiencing ‘fairly advanced dementive illness’. However, the examining doctor noted that, at the time, Ivan had no delusions and a good understanding of his assets, beneficiaries, and the nature of the will. Ultimately, the court found that Ivan had testamentary capacity at the time he drafted the new will. In the judgment, several cases which acknowledge that testamentary capacity can exist despite the presence of cognitive decline. The judge granted the defendant’s request and ordered that the 2015 will was valid.

    Reminders for Will Writers

    As the Nykoryak case and other BCSC case law demonstrates, testamentary capacity can be found even where the testator is experiencing cognitive decline. However, even where a will written by a testator with cognitive decline is found valid, the estate and beneficiaries can ultimately lose out on time and money from resulting litigation. To minimize risk of litigation, will writers should update their will frequently, and ensure to seek help from a professional who can assess and provide evidence on their capacity if necessary. 

    Understanding the limits of testamentary capacity in BC estate law is important for all will writers and beneficiaries. Further, planning in advance for potential future incapacity is an essential part of a robust estate plan. Remember, you can lose capacity unexpectedly at any time, particularly later in life. If you’re curious about the impact of potential capacity issues on your estate, or an estate you stand to benefit from, 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.

  • Pre-Death Estate Litigation

    Pre-Death Estate Litigation

    Estate disputes are usually thought of as conflicts that arise after someone passes away. In some cases, these disputes begin while the will writer is still alive and can change their will. Pre-death litigation involves challenging a testator’s estate plan while they are still capable of making those decisions. This can happen due to concerns about their mental capacity, undue influence, or disagreements over broken promises.

    Pre-death litigation is becoming more common in British Columbia as families grapple with complex estate issues. These disputes can be highly emotional and may have long-lasting impacts on both the testator and their loved ones. Understanding why pre-death litigation occurs, the legal tools available, and the potential consequences is important for those considering challenging a will.

    What is Pre-Death Estate Litigation?

    Pre-death litigation are challenges to wills or property transfers that arise before a testator (the person making the will) passes away. Common reasons for initiating pre-death litigation over estate assets include allegations of undue influence, concerns over the testator’s mental capacity, or disagreements about the handling of property and assets.

    Will writers should ensure that the contents of their will are compliant with WESA to reduce the risk of estate litigation.

    Common Causes of Pre-Death Estate Litigation

    Most often, pre-death estate litigation concerns broken promises or wills created by people who lack testamentary capacity. Other issues that may prompt pre-death estate litigation are:

    • Committeeship orders for incapacitated testators;
    • Power of attorney appointments and disputes;
    • Advance care directives and their role in the broader estate plan;
    • Proprietary estoppel and broken promises in a new will.

    An Example From Case Law

    In Linde v Linde (2019)  the BC Supreme Court ordered a father to leave his farmland to his son upon his death. The father, Kenneth, had promised his son Howard that in exchange for his years of low or unpaid work on the family farm, he would inherit the land when his father died. Kenneth and Howard had a falling out, and Kenneth changed his will, removing Howard as the beneficiary of the farm. Howard sued his father, claiming that proprietary estoppel barred him from disinheriting Howard.

    The judge considered the promises Kenneth had made to Howard, the contributions Howard made to the farm, and the personal losses he suffered as a result of the broken promise. Ultimately, Kenneth was ordered to leave Howard the land in his will. However, Kenneth was given the right to live on the land and draw a modest profit from the land until his death. 

    Issues to Consider Before Pursuing Litigation

    Contesting an estate before the death of the will writer can be a lengthy and complex process. While it is beneficial to resolve disputes early, particularly in cases of broken promises or misrepresentations, it can come with significant challenges. Litigation can strain family relationships, incur substantial legal costs, and may fail if the court is unconvinced of the claims. Alternatives like mediation, estate planning reviews, or drafting binding agreements—such as cohabitation agreements or mutual wills—can address concerns without litigation. Consulting with an experienced estate lawyer can help you determine the best path forward in your circumstances.

    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.

  • Curing an Invalid Will: Acceptable Evidence

    Curing an Invalid Will: Acceptable Evidence

    A will is invalid in BC if it isn’t compliant with the formal requirements of the Wills, Estates and Succession Act (WESA).  In British Columbia, courts have the power to “cure” an invalid will which still represents the intentions of a testator. But how do the courts discern the true intentions of a testator with an invalid will? In this article, we’ll go over the principles surrounding extrinsic evidence interested parties can submit to support the court in curing an invalid will.

    Requirements Under WESA

    Under WESA, for a will to be valid in BC it must satisfy three requirements: 

    1. The will must be in writing;
    2. The will must be signed at the end, and;
    3. The will must be properly witnessed.

    According to WESA, the will-writer must sign the end of the will while in the presence of two or more witnesses in order to create a valid will. Basically, you must have two people witness you sign the last page of your will. Importantly, witnesses can’t be beneficiaries of the will, or the spouse of the will-writer. Further, the will must be in writing. A video or voice recording is not a valid legal will under WESA.

    Curing Invalid Wills

    According to s. 58 of the Wills, Estates and Succession Act (WESA), the courts have the ability to make a curative provision to an invalid will. Essentially, this means that if a will does not satisfy the above requirements, the courts can “fix” the deficiencies of the will and validate it. If a judge is satisfied that the owner wrote the will and it truly represents the owner’s intentions at the time of their death, they can cure the invalid will.

    The court uses medical records as evidence to understand the mental state of the will writer when they prepared a testamentary document.

    Evidence Used by the Courts to Discern a Will Writer’s Intention

    In the case of Hadley Estate (Re), 2017 BCCA 31, the judge discussed the difficulty of discerning if a non-compliant document expresses the testamentary intentions of its writer. This is because, obviously, the person most able to express those intentions has already passed away. Invalid wills, drafted without a lawyer’s help, are more likely to be unclear in their use of legal language. Because of these challenges, interested parties are able to submit extrinsic evidence to aid the courts. Extrinsic evidence can be almost any material which relates to or demonstrates the will writer’s testamentary intentions.

    Examples of Evidence

    In curing a will, the court aims to ensure that, even though the document is invalid due to WESA non-compliance, it still expresses the fixed and final testamentary wishes of its writer. To demonstrate that the will should or should not be cured, evidence that could be submitted includes:

    • Personal Letters or Emails: These can provide insight into the will writer’s relationships and their intentions for their estate. For example, a family member receives a letter discussing the writer’s wishes for them to receive specific assets.
    • Audio or Video Recordings: Recordings where the will writer discusses their estate plans can be powerful evidence. However, the recency and context of the video recording will determine the value of this evidence.
    • Financial Documents: Bank statements or other financial documents can show patterns consistent with the will writer’s stated intentions. For example, regular payments to a charity that the will writer wished to leave a bequest to could confirm a clause making a large donation in an invalid will.
    • Witness Testimonies: People who were close to the will writer can testify about conversations they had regarding the will. A friend could testify about the testator’s relationship to their family members and any comments they might have made about their testamentary wishes.
    • Medical Records: These can help establish the will writer’s mental capacity at the time the will was made. This could include a doctor’s report stating that the will writer was of sound mind when discussing their estate plans.
    • Diaries or Journals: Personal writings can reveal the will writer’s thoughts and intentions about their estate. For instance, a journal entry where the will writer discusses their reasons for wanting to disinherit a particular family member.

    Examples of Evidence from Case Law

    An Unsigned Handwritten Note

    There are numerous examples in BC case law which demonstrate admissible extrinsic evidence to support the courts in curing a will. In the recent case of the Skopyk Estate (2017), a will writer told his family that his will from 1995 didn’t express his current wishes, and that he was working on a new one. He passed shortly after, but family found an unsigned handwritten document in his apartment after his death. Even though the document was unsigned, the court cured the document based on the following extrinsic evidence:

    • The document was placed somewhere it could be easily found after the death of the will writer;
    • The estate distribution set out in the document was rational based on it’s exclusion of a beneficiary of the 1995 will who had since died;
    • The document referenced the 1995 will, and even clarified a typo from that old will;
    • The deceased had told family numerous times that he was trying to update his 1995 will before passing; and
    • The distribution in the document matched the wishes he had communicated to his family while in the hospital before someone found the document.

    Based on the above evidence, the court found that the note was a deliberate expression of the deceased’s final wishes. The court ordered that the document was a valid alteration to the pre-existing 1995 will.

    A Document Labelled “Will” Stored With Valuables

    In Dickinson-Starkey Estate (Re) (2022), the deceased’s nephew sought legal assistance in locating his uncle’s valid will. There was no notice of will in force, and no document was found. He gained access to his uncle’s house using a neighbour’s spare key, and found a folder labelled “will” with the deceased’s name and address. The writer had stored the folder with items including antiques, family photos, expensive liquor, crystal and china. The document was lengthy and detailed, and clearly intended to serve as a will. However, the court couldn’t cure it under s. 58 based on the following discrepancies:

    • There were a number of handwritten notations and changes on the types document, indicating that it was still a work in progress;
    • The deceased did initial some pages, but there was no signature;
    • No one was given a copy or told specifically about a new will;
    • The deceased spoke frequently about his will, but had not taken any steps to finalise this new document, indicating it is not an expression of fixed and final intentions;
    • The deceased indicated he was still preparing his will in November 2017, and the document found in his home was dated July 2017;
    • There were clauses in the will which were inconsistent with one another.

    On the balance of probabilities, the court couldn’t determine that the deceased intended the document to express his fixed and final intentions. The deceased was likely still considering the contents of the document at the time of his death. Unfortunately, this meant that the estate had to be distributed according to the laws of intestacy, as the deceased had not written another will.

    Reminders for Will Writers

    Even though beneficiaries may have recourse if WESA finds your DIY will to be invalid, it’s always best to have a valid will in the first place. The process of applying to have a testamentary document cured under s. 58, gathering evidence and presenting it to the court can be time consuming and costly for loved ones. It is always best to seek legal advice when preparing your will, at least to ensure that it is valid under WESA and can be easily probated and executed after your death. If you have questions about the validity of your DIY will, or are ready to start your estate plan from scratch, 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.

  • What is a Testamentary Contract?

    What is a Testamentary Contract?

    A testamentary contract allows a will writer to leave their estate to another person in exchange for something. Usually, this comes in the form of services, like end of life care for the will writer. A testamentary contract is a binding contract. A will writer will not be able to change the beneficiary of the assets after agreeing to the contract. Testamentary contracts can often give rise to estate litigation, for a number of reasons. In this article, we’ll cover the basics of testamentary contracts and problems that can arise from them in your estate plan.

    Basics of the Testamentary Contract

    When a will writer enters into a testamentary contract, they are agreeing to give their estate, or a specific asset to a specific person. If they later change their will to deprive this person of the assets promised in the testamentary contract, the beneficiary can sue for breach of contract. If they are successful in proving the existence and breach of a testamentary contract, either before or after the death of the testator, the Courts can enforce the contract by varying the will.

    Common Problems

    It is not uncommon for testamentary contracts to take the form of a verbal agreement. The most common problem litigants face in enforcing a testamentary contract is proving the existence of the contract to the Courts. This exact problem came before the B.C Supreme Court in the 2022 case of Angelis v. Siermy. 

    Without a clear record of a testamentary contract, it is up to the claimant to prove beyond a reasonable doubt that there was an agreement.

    In this case, a woman with no children left the majority of her high-value estate to one of her nieces in a 2002 estate plan. Years later in 2011, the aunt changed her will to give most of her estate to a different one of her nieces. The first niece, the claimant, alleged she had an oral testamentary contract with her aunt. In the alleged agreement, the aunt promised the majority of her estate to this niece in exchange for several years of unpaid end of life care. She claimed that the execution of the 2011 will breached this agreement. 

    Somewhat unusual in estate litigation, the will writing aunt was still alive when her niece brought this claim. The aunt denied the niece’s claim that they had a testamentary contract or even a verbal agreement, though neither parties had witnesses to support their claims. The claimant provided the Court with letters allegedly written by her aunt which explained her reasons for executing her 2002 will. The aunt denied writing these letters and, ultimately, the Court found that the claimant had forged two of the letters she submitted as evidence. The Court stated there wasn’t sufficient evidence that a testamentary contract ever existed between the two parties, and the claim was dismissed. 

    Key Takeaways

    Testamentary contracts are not uncommon in estate planning, as will writers promise loved ones certain assets in exchange for end of life care or other services such as home maintenance. However, people entering into these agreements should clearly document that there is an exchange of estate assets for services or other consideration. It is also advisable to ensure that other parties are aware of the will writer’s intention to exchange specific assets for services from a beneficiary. Having a record of the agreement which can be supported by witness testimony will ensure that the Courts can enforce a testamentary contract, even after the death of the will writer. 

    If you have questions about giving estate assets to a beneficiary in exchange for services, or if you are concerned that your testamentary contract won’t be honoured by a will writer, 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. 

  • Can Estranged Children Contest A Will?

    Can Estranged Children Contest A Will?

    In the 2010 case of LeVierge v. Whieldon, the BC Supreme Court examined the rights of a parent to exclude estranged children from their will under the Wills, Estates, and Succession Act (WESA). In this article, we’ll summarize the rights of estranged children to contest a parent’s will in British Columbia.

    Facts of the Case

    In British Columbia, Courts can intervene and vary a will which disinherits a child or spouse for unjust reasons.

    The plaintiff, LeVierge, was one of Edith Whieldon (the deceased)’s three children. Edith passed away unexpectedly and at the time of her death had an estate valued at approximately $1.2 million. In her will, Edith left the residue of her estate to her two sons, and excluded her daughter from receiving any inheritance. LeVierge said she had been estranged from Edith for two years before her death, and that alone was the reason for her exclusion from the estate and that she contested the will on the grounds that she had a moral claim to an inheritance from her mother’s estate.

    In considering the claim, the Court considered whether the reasons for LeVierge’s exclusion were ‘valid and rational’ to allow disinheritance under WESA.

    Evidence Considered

    When a WESA claim is made, the court will consider the broad context of the family’s relationships. In this case, the court considered oral evidence from the plaintiff and her siblings about the her relationship with Edith. Interestingly, part of the evidence considered by the court was the decedent’s diary. Edith’s diary provided specific insight into the breakdown of the mother-daughter relationship. 

    In B.C, the Courts can change a will after the death of its writer if the terms are unfair.

    As a result of the diary evidence, the Court found that LeVierge was not a credible witness. LeVierge claimed she had been estranged from her mother for two years leading up to her death. However, the diary demonstrated that the estrangement had begun 10 years prior. The diary supported the estate’s position that there was a high conflict mother-daughter relationship. The diary suggested that the plaintiff denied Edith visitation with her grandchildren and didn’t keep in contact with her. As a result the court dismissed the plaintiff’s arguments for a moral claim to inheritance. 

    Further, evidence showed LeVierge had previously received a gift of $160,000 from her father. She used it for a deposit on a new home. The the mortgage payments were paid by her father, and LeVierge lived there with her children at little cost. As a result of this gift, at the time the plaintiff’s father passed, the plaintiff’s siblings were unable to benefit from his estate.

    The Court’s Decision

    After considering evidence from the claimant, her siblings and the diary of her mother, the judge found that there were many reasons for the claimant’s exclusion from the will, and that the exclusion was reasonable and was not just the result of the estrangement from Edith in the two year’s before her death. A critical part of the reason the court found the plaintiff’s exclusion to be reasonable and just was because the plaintiff’s father had contributed a large sum of his estate to the purchase of a new home. As a result, the plaintiff’s siblings received no benefit from their father’s estate upon his death.

    This case demonstrates the complex evidence that a Court will consider when a claim to vary an estate is made. It also demonstrates that estate disputes can be high-conflict, and complex in nature and that an estate variation claim that is litigated can take years to resolve. A disputed estate delays estate administration with the distribution of inheritance delayed until the dispute is resolved. Will writers should always carefully plan their estate to minimize risk of estate litigation after their death. One of the best ways to avoid estate litigation is to speak openly with the beneficiaries and family to ensure there are no surprises upon death and that the reasons for the decisions made are well known. 

    Don’t know where to start with your estate plan? Contact an experienced estate lawyer today. We’ll create a unique plan suited to you and your family’s circumstances. Alternatively, feel you’ve been unfairly treated in an estate? Contact an experienced estate dispute 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.

  • Equally Divided Will Found Unfair By B.C. Supreme Court

    Equally Divided Will Found Unfair By B.C. Supreme Court

    Unfair provisions in a will can be changed under the Wills, Estate and Succession Act (WESA) in British Columbia. However, the recent B.C Supreme Court case of Rawlins v. Rawlins (2023) demonstrated that even a will divided into equal shares can be unfair.

    Varying a Will Under WESA

    WESA defines a will writer’s duty to provide ‘adequate provision for the maintenance and support’ of their spouse and children. Importantly, this provision applies even to adult children of the testator. There are only narrow exceptions which allow will writers to disinherit their children, discussed in our article here. If a dependant was unfairly disinherited, or inherited an unfair amount, they can apply to vary the will. Interestingly, in the case of Rawlins, a completely equal division of estate assets was still found unfair. 

    Facts of the Case

    Marguerite Rawlins had three sons, and her husband had predeceased her. Her estate was valued at around $2.5 million in total, comprising of her house, investments and cash. Her will divided the total value of her estate into three equal shares to be divided between her sons. 

    Care provided in end of life years is often the subject of moral rights claims to an estate.

    Her son Roy raised a claim under WESA, stating that this division of his mother’s estate was unjust. First, he claimed unjust enrichment against the estate and an enhanced moral claim to the estate’s assets. Roy believed the estate had been unjustly enriched due to his contributions to the maintenance of his mother’s home. Further, he believed he had an enhanced moral claim to the estate due to the significant care he provided his parents in their final years, which his brothers did not participate in. He further claimed that his parents had told him he would receive the home and specific investments upon their death.

    His brothers disputed his claim that the division of assets was unfair, even in light of Roy’s contribution to his parents’ care. They said that, because Roy had been allowed to live rent-free with his parents for his entire adult life, his benefit from his parents throughout his life outweighs the benefit he gave to them through his care. 

    The Court’s Decision

    The judge considered the standard set in Tatyryn v Tatyryn, that the distribution of estate assets should be ‘adequate, just, and equitable’, and the Courts should only intervene where the distribution chosen by the will writer falls below that standard. Ultimately, the Court found that Roy failed to prove that the will did not make adequate provision for him. However, his claim of unjust enrichment was successful. Roy received a gift of $115,000 on top of his share of the estate. The remaining value of the estate was divided equally between the brothers. 

    Those creating their estate plan should take notice of this case which demonstrates that even equal provision of estate assets can give rise to estate litigation and variation of their will. In order to reduce risk of costly estate litigation between beneficiaries after your death, it’s important to consult an experienced lawyer to create a comprehensive estate plan suited to your unique situation. Further, will writers should keep their beneficiaries up to date with their estate plans and avoid surprises.

    If you have questions about creating an estate plan or updating an existing one, 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.

  • What are the consequences to Executors for breaching trust?

    What are the consequences to Executors for breaching trust?

    Executors have a duty to act in the best interests of the estate and its beneficiaries. Occasionally, executors act in breach of this trust, often accidentally. However, there are ways in which courts can impose penalties for executors breaching trust. Overall, executors have an obligation to administer the estate in a timely manner, in the interest of the beneficiaries. To summarize, some of the most common ways an executor is found to be in breach of trust include:

    • Commingling of estate assets with their own personal assets,
    • Fraudulent behaviour,
    • Not accurately reporting an estate’s assets in the detailed accounts, or
    • Failing to pay an estate’s debts.

    Depending on the severity of the breach, courts can choose a consequence to remedy the losses suffered by beneficiaries. Possible consequences that the courts will consider are:

    • Reducing or eliminating Executor’s fees;
    • Holding Executors personally liable for losses; and/or
    • Removing and replacing the executor.

    Removing Executor’s Fees

    Generally, executor’s fees cannot total more than 5% of an estate’s value.

    In cases of a minor breach, the courts may simply deny the executor from receiving compensation through executor’s fees. For example, if an executor were to act slowly and fail to administer the estate in a reasonable amount of time. The courts could find the executor failed to fulfill their duty by administering the estate in an untimely manner.

    In the case of The Estate of Lilian Lai Lien Lowe (2002), the executor was denied any compensation for her duties. Unfortunately, under the executor’s administration, the estate lost a considerable amount of money which obviously impacted the welfare of the beneficiaries. Further, the executor was looking to charge a fee much greater than the usual 2-3% of the estate’s value. Summing up, the judge stated that the executor “has demonstrably failed to exercise an appropriate level of skill and ability. Because the executor failed to fufill her duty, the fee was distributed to the beneficiaries of the will instead.

    Executors Held Personally Liable for Breaching Trust

    Occasionally, executors find themselves responsible with selling assets or making investments on behalf of the estate. Undoubtedly, all investments carry a risk of loss. However, if the executor makes an investment that a reasonable person wouldn’t have, the executor can be liable for the losses. If the investment was reasonable and simply happened to result in a loss, the executor will not be liable. To put it another way, the executor must act in a demonstrably irrational manner to be held liable for losses to the estate. The courts will typically only order this if the executor has caused the beneficiaries to suffer a significant loss.

    Removing the Executor

    Importantly, in extreme cases where executors are found in breach, the courts can order the removal of an executor. According to the judgement in Nieweler Estate (Re) (2019), there are four categories of conduct that will warrant a removal of an executor:

    1. Endangerment of the trust property (estate);
    2. Dishonesty;
    3. Incapacity to execute the duties; and
    4. Lack of reasonable fidelity (good faith).

    In general, executor removal is a last resort for the courts because it inherently contradicts the final wishes of the testator. An executor will only be removed if the courts see no other option to resolve the estate administration issue at hand. If you’re looking for more information, read our past blog post on executor removal here.

    Ultimately, it’s at the discretion of the courts to determine how to handle an executor who has breached their trust. In some cases, multiple consequences are ordered against the executor of a will. To avoid this, executors must work quick and with the best interests of the beneficiaries in mind – hiring an estate lawyer can help to ensure that all the proper procedures are followed.

    If you’re a beneficiary who has fallen victim to an executor who has breached your trust, contact an experienced estate lawyer today. We can ensure that the proper steps are taken to ensure that you’re compensated for any losses suffered and the estate is administered appropriately.

    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.

  • Court of Appeal Changes Will After Death of Will Writer

    Court of Appeal Changes Will After Death of Will Writer

    The recent BC Court of Appeal case of Tom v. Tang (2023) demonstrated again that BC Courts are willing to change the contents of a will under the Wills, Estates and Succession Act (WESA). In this blog, we’ll cover the Court’s decision and the steps will writers can take to avoid estate litigation.

    Facts of the Case

    In the recent case of Tom v. Tang, three siblings claim that their mother’s will is unfair. The will left equal shares of the estate to the five children. However, the sale proceeds of her house were only left to two. The result was that 85% of the estate’s value was left to only two of the five children. Ms. Tang gave the proceeds of the home to the two children in recognition for their contribution to her care in the final years of her life. 

    The three siblings who received lower inheritances claimed the will was unfair and should be varied by the Courts. The siblings who received larger inheritances argued that the Court must enforce the wishes of the will writer, Ms. Tang. 

    The Court’s Decision

    Siblings are frequently party to estate disputes, either raising claims against or defending the validity of their inheritance.

    The Court considered the testamentary wishes of the will writer and the rationality of the contested provision. Ultimately, the Court found that the division was unfair or irrational under WESA. Considering each child’s contributions to the family during their adult life, a more equal division would be reasonable. The Court rewarded the two siblings 30% each of the estate’s total value, and about 14% to each of the remaining three children. This balanced the fair division of assets to each child while acknowledging the will writer’s intention of rewarding the two siblings for their extra efforts.  

    Varying a Will Under WESA

    In British Columbia, WESA regulates estate distribution and planning.  Under WESA, Courts can change the provisions of a will to benefit family members that were excluded or treated unfairly. Section 60 of the Act allows interested parties, such as children or spouses, to challenge an unfair will. However, not just anyone who feels they should have been included can contest a will. For more on eligibility for challenging a will, check out our previous video blog by Darren Williams.

    The Act requires will writers, or testators, to provide adequate maintenance for interested parties. There are a limited number of reasons that a testator can validly exclude, for example, a child from their will. If a dependant hasn’t been provided adequate provision in a will, they may be able to raise a claim. 

    Steps to Avoid Potential Estate Litigation

    There are steps that testators can take to ensure their will is WESA compliant and potentially avoid litigation. First, testators should ensure that they carefully consult with an estate lawyer when planning and writing their will. The benefit of drafting with a lawyer over doing it yourself or with a notary is that a lawyer can foresee potential legal issues which may cause litigation later on. Being able to identify common pitfalls and predict problems in your estate plan can save time, money and stress.

    Second, testators should ensure that they are very clear with their intentions when giving large gifts during their lifetime. This can include cash gifts, real estate or valuables which many family members may have a special interest in inheriting. By ensuring that they record all gifts in writing and expressly state that the transfer was a gift, testators can avoid ambiguity. Working with a lawyer to record your intentions for large transfers can help to avoid undue influence or testamentary incapacity claims. If the intention to gift is unclear on large gifts, potential beneficiaries may claim the transfer was not a gift on the basis of resulting trust or the testator’s legal capacity to make the transfer. 

    If you’re looking for specific advice on how to reduce risk of litigation arising from your will, contact an experienced estate lawyer today. We’ll help create an estate plan for you unique situation and needs. 

  • Important Limitation Dates in Estate Litigation

    Important Limitation Dates in Estate Litigation

    Various different legal remedies ensure that estates distribute as the testator intended and prevent invalid disinheritance. However, claimants must adhere to certain deadlines to initiate an estate litigation case. Typically, estate litigation cases have a limitation period of either two years or six months. The specific time restrictions, however, vary between cases based on their individual circumstances and the type of claim made.

    The Limitation Act

    While courts typically adhere closely to limitation periods, they occasionally extend these periods in certain cases.

    According to the Limitation Act, “a court proceeding in respect of a claim must not be commenced more than two years after the day on which the claim is discovered.” That is the day when the claimant became aware of the event that gives rise to the claim. It can also mean the day the claimant should have reasonably been aware. In estate litigation cases, the claim is usually discovered on or near the day that the testator passed away. In most estate litigation cases, a claimant has two years from the day of the testator’s death to take action. Exceptions exist to the standard two-year limitation period. The most common exception is for will variation claims, which have a limitation period of six months.

    Limitation periods are meant to encourage people to begin their claims in a timely manner. Beyond the typical two year window, it becomes increasingly difficult to bring forth strong evidence for the court. Limitation periods incentivize people to bring their claims before the courts as soon as possible. They can also restrict people from making absurd claims many years after the passing of a testator.

    180 Day (6 Month) Limitation Period

    Under the Wills, Estates and Succession Act, will variation claims have a 180 day limitation period from the date probate was granted. This can include will challenges, rectification claims, and unfair disinheritance cases. The limitation period for these claims starts from the date probate is granted, not the date of the testator’s death.

    Potential Exceptions to a Limitation Period

    While limitation periods are strictly adhered to by the courts, there can be exceptions made in special circumstances. The case of Chan v. Lee (Estate) (2004) is an example of when the courts extended the limitation period well beyond the conventional 180 days. The daughters in this case did not raise their claim until more than a year after probate was granted. They claimed their brothers promised to remedy the situation and fairly distribute the estate between them. The sons did not notify them of the will being granted probate with the intention of abusing the limitation period.

    Ultimately, the judge dismissed the sons’ cross-claim that the limitation date had passed and heard the daughters’ claim. The sisters could not have reasonably known how to act in their best interests while being mislead. Hence, the limitation period on their claim did not begin until the day the sisters discovered they had been lied to regarding the administration of the estate.

    Two Year Limitation Period

    Estate litigation cases typically have a limitation period of two years from the date of the testator’s death, with the exception of will variation claims.  Sometimes, the courts find it reasonable for someone to have not been aware of the death of the testator until sometime thereafter. For example, if they live outside of the country or did not keep in close contact with the testator. In such circumstances, the court can extend the limitation period for claims made by that person to two years from the date they learned of the testator’s death, if the claimant can provide reasonable evidence of their lack of knowledge at the time of death.

    An example of a case with a two year limitation period could be a fraud claim against a will’s executor. A beneficiary or other interested party would have two years from when they become aware, or ought to have been aware, that the executor has committed fraud. In some cases, the discovery is not until many years after the fact, with the 2 year clock beginning to run on the date that the claimant became aware or ought to have become aware of the fraud.

    If you think you have an estate litigation case that should be heard before the courts, contact an experienced estate lawyer today. The earlier the process begins, the more likely you are to be successful, and you will avoid any limitation periods restricting your access to legal remedy.

    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.