Category: Wills Variation
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Estate Litigation: Who Can Contest a Will
In BC, who can contest a will depends on why. Only a spouse or child can bring a wills variation claim under WESA. Anyone who would inherit if the will were declared invalid, such as a relative on an intestacy, can instead challenge the will’s validity. Not everyone can contest a will; for example, I […]
Wills Variation: Life Estates; Legal & Moral Obligations
On a wills variation application, can a life estate in a matrimonial home satisfy the legal and moral obligation to a long-term, caring and dedicated spouse? A life estate (also called a “life interest”) in a piece property allows the beneficiary to reside in the property for the duration of their life; on their death, […]
Wills Variation Based on Post-Death Change in Circumstances
On a wills variation application, the date of death of the will-maker is the date to be used in determining whether a will-maker has made adequate provision for the proper maintenance and support of a spouse or children. When determining whether adequate provision was in fact made, the court cannot consider substantial changes in the […]
Parent’s Moral Obligation to Include Adult Child in a Will
Quick answer: A parent in BC has no legal duty to leave anything to an independent adult child, but the court recognizes a moral duty. Under section 60 of the Wills, Estates and Succession Act, an adult child can ask the court to vary a will that fails to make adequate provision. That moral duty […]
Wills Variation: Costs Implications for Executor-Beneficiary
In BC, an executor who is also a beneficiary generally cannot have the estate pay their legal costs of fighting a wills variation claim, because an executor is required to stay neutral. If they step out of that neutral role to argue as an interested beneficiary, they usually bear their own costs rather than charging […]
Wills Variation, Vancouver: Competing Moral Obligations
As I discussed in an earlier post, in wills variation proceedings, the courts are frequently tasked with balancing moral obligations of a will-maker to a second spouse against moral obligations to adult independent children from the will-maker’s first marriage.In Bridger v. Bridger Estate, 2006 BCCA 230, Mackenzie J.A. for the majority discussed the wills variation […]
Testamentary Capacity: Hearsay Evidence as to State of Mind
In Chang Estate v. Chang, 2013 BCSC 976, aff’d 2014 BCCA 28, the court relied on hearsay evidence in determining the validity of a will which essentially disinherited one of the will-maker’s four adult children; the hearsay evidence provided proof of the will-maker’s state of mind and bolstered other evidence that established the will-maker’s testamentary […]
Disinherited Son Unsuccessfully Challenges Mother’s Will
In Chang Estate v. Chang, 2013 BCSC 976, aff’d 2014 BCCA 28, a mother prepared a will that disinherited her son – he challenged his disinheritance, but the court determined that the mother was mentally competent and acting freely when she made her will. She intended to disinherit her son and had valid reasons for […]
Wills Variation Claims: Balancing Moral Obligations
On wills variation claims, the courts are frequently tasked with balancing the moral obligations of a will-maker to a second spouse and to an adult independent child from the will-maker’s first marriage. In Mars v. Bain, 2011 BCSC 1714 the deceased’s will provided his common law spouse with just 4% of his $1.5 million estate, […]
Competing Wills Claims of Stepchildren and Long-term Second Spouse
I recently discussed the oft-seen competing wills claims of adult independent children of a first marriage and a second spouse. In that case, Eckford v. Vanderwood, 2014 BCCA 261, the court found it to be within the range of acceptable outcomes for the surviving spouse to be excluded from her husband’s will, as she had […]