Category: Wills Variation
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Financial Nondisclosure the “Cancer” of BC Estate Litigation
In Haley (Re), 2017 BCSC 2057, nondisclosure of financial information and assets surrounding the passing of accounts was described as the cancer of BC estate litigation. Failure on the part of the administrator, executrix, or trustee to disclose and consult with beneficiaries in a timely manner results in the failure to pass accounts as presented, increases […]
BC Estate Law: Who is Responsible for Paying Costs in a Wills Variation Action?
In a BC wills variation action, costs usually follow the event, meaning the losing party pays the winner’s costs personally rather than the estate footing the bill. This is the rule in Steernberg. Courts can depart from it, but an unsuccessful variation claim does not automatically get paid from the estate. Who pays the legal […]
BC Wills Variation: Legal and Moral Duties to Second Spouse in Balancing Estate Claims
In BC wills variation claims, the courts are often asked to weigh the legal and moral duties of a will-maker to a second spouse against the claims of adult independent children from the will-maker’s first marriage. I have previously discussed the principles the court applies to determine fair division of an estate and the factors […]
Wills Variation: Testamentary Freedom vs. Legal/Moral Duties
The conceptual core of wills variation legislation is to permit judicial interference with testamentary freedom where adequate provision has not been made in respect of a narrow protected class. Testamentary freedom is subordinate to the main objective of wills variation legislation: adequate, just and equitable provision for spouses and children of the will-maker. Sigurdson J. […]
Long-Term Second Spouse’s Successful Wills Variation Claim
The British Columbia court was recently asked to decide a wills variation claim brought by a long-term second spouse who was essentially left out of her husband’s will in favour of his five adult children (three from his first marriage, and two from his second marriage). The children of the first marriage opposed their stepmother’s […]
Wills Variation: Changing Will After Death of Spouse
There are many factors that the court considers when a surviving spouse brings a wills variation application to change the will after the death of a spouse. In some cases, the court may vary the will to provide the surviving spouse with a larger share, even where the surviving spouse already has enough to live […]
Wills Variation: Moral Obligation to Children of First Marriage
As I have previously discussed, on a wills variation application, the moral obligation to independent adult children is usually more tenuous than the moral obligation to the surviving spouse or dependent children. Generally speaking, if the size of the estate permits, and in the absence of circumstances negating the existence of a moral obligation, some […]
Wills Variation Action Not Barred By Marriage Agreement
In BC, a marriage or cohabitation agreement that waives estate claims does not automatically defeat a surviving spouse’s wills variation claim. The agreement is one factor the court weighs. Even a fair, well-considered waiver is unlikely, on its own, to be a complete answer to the claim. The existence of a marriage agreement barring a […]
Estate Law: What Happens if Someone Passes Away with No Will
Under British Columbia’s estate law, if a person passes away without a will, then that person is said to have passed away ‘intestate’ (i.e., without a will). When that happens, British Columbia’s estate law dictates how the intestate estate would be distributed. The following is a brief overview of who would inherit the intestate estate […]
Legal and Moral Obligations on a Wills Variation Claim
On a wills variation claim, the court’s decision as to whether a will makes “adequate, just and equitable” provision for a claimant requires consideration of both the legal and moral obligations owed by the will-maker to the claimant and any other beneficiaries: Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. This post provides an overview […]