The wife of the deceased sought variation of his will under the WVA asserting it did not make adequate, just and equitable provision for her. The will had been drafted September 24, 2003 and the testator died September 7, 2013 (pre-WESA). The plaintiff was the second wife of the deceased, but their relationship had lasted approximately 34 years. The plaintiff had two children from her first marriage. The deceased had four children from his first marriage.
The testator had two sons, but one did not know the identity of his biological father until his teenage years. When the testator died, he left the estate equally between his sister, the executrix of the estate, and one of his son’s (E). Subsequently, in 2013, E’s mother brought an application (as legal guardian), on E’s behalf, under the Wills Variation Act to vary the will. Through this application, the matter was settled whereupon E would receive 80% of the estate and W would receive 20%. Later, the estranged son, J, brought an action for an order that the will provide provision for him as well.
In this case, the judge took an open-minded approach in addressing whether or not a couple had been “common-law” in the eyes of the law. Mr. Chambers applied for a declaration that he was the “spouse” of Ms. Connor, within the meaning of s. 2 of WESA, although they were not legally married, did not live together and did not have any children. Ms. Connor did not have any children and she was predeceased by both her parents and her only full sibling. The application was opposed by Ms. Connor’s five half-siblings, which Ms. Connor had never met.
Dr. Philp (84) brought a claim under s. 2 of the Wills Variation Act as he felt the will of his wife did not make adequate provision for him. While both Dr. Philp and the deceased had previous marriages, they had a long relationship together and were married for 31 years. The will provided Dr. Philp a life interest in the family farm property (owned originally by the couple as joint tenants) as well as the income generated from the residue of the estate until his death. The value of the estate at the time of death was valued at $677,000.
The testatrix died February 9, 2015, aged 91, and was survived by 3 children. The will, made September of 2000, detailed her daughter, the petitioner in this action, was to receive “any property which I may own and be using as a home at the date of my death”. At the time the will was made, the testatrix owned a home on Hornby Island, but it was later sold and, at the time of her death, she did not own a home. The question became, should the daughter receive an amount equivalent to the proceeds of sale of the property?
The testator left behind an estate worth over $2 million and his will detailed it be divided into two shares, one to his son absolutely and the income of the other to his wife for life, then to be divided among her son’s living children upon her death. The wife brought an application to vary the will as she felt the will failed to adequately address the legal obligations to her. The couple had been married for 53 years and their finances had been intimately entwined.
The wife of the deceased, Dr. Dominic Ciarniello, sought variation of her late husband’s will as she felt the will did not make adequate, just and equitable provision for her. The testator left behind a sizable estate and his wife of 28 years (39 years together) and 5 adult children (3 being from previous marriage). The will provided that after certain specific gifts, the residue of the estate was to be divided equally among his 5 children and his wife was only to receive any interest he had in the family home in Vancouver. Under the circumstances, the plaintiff felt she was not adequately provided for. The claim was brought by summary trial application.
The testator died February 1, 2012 at age 85 and left behind a wife and a number of adult children from two marriages. The children from his first marriage sought variation of the will pursuant to s. 2 of the Wills Variation Act and a declaration that Betty Sim (Mrs. Sim), the executrix and trustee of the estate, holds a Peachland property in trust for the estate. The Peachland property had originally been in their step-mother's family (subsequently purchased by her) and had an estimated value of ~$760,000. The court weighed in on whether or not this property formed part of the deceased's estate.
In dealing with an estate (when Father Time is catching up), it is often the case that parents will transfer part of their estate into the name of a child. This transfer is usually in the form of Joint Tenancy. While often trouble-free, this transfer does have the tendency to exclude other children of the family and create problems when it comes to distribution of the estate. Is it the case that the home, which was held in Joint Tenancy at time of death, was actually a gift to the child? Or is it held in Resulting Trust for the estate?
The recent case of McKendry v. McKendry, 2015 BCSC 2433 dealt with this matter and provided some analysis of the law.
The recent decision of Anderson v. Anderson Estate is an example of the tension that often exists with families at the time of a death. Earle Lloyd Anderson died December 6, 2012 only one week short of his 88th birthday. The Plaintiff, Mrs. Anderson, was Earle’s second wife and they had been married in 1992. Mrs. Anderson brought an application to vary the will of her husband as she had only been left the ability to remain in their matrimonial home (on conditions) and receive a modest income from the residue of the estate (on similar conditions). The Defendants, Earle’s children from a previous marriage, opposed the application and held the opinion that their father and Mrs. Anderson were separated after his hospitalization before death in 2012 and was not entitled to anything further.
The defendants, the children of the deceased, brought an application to dismiss their brother’s claim against their mother’s estate by summary trial. Their brother, the Plaintiff, felt that a transfer of property by their mother to only 3 of her 8 children was not fair, in the circumstances. The Plaintiff was one of the children that did not benefit from the property transfer. The Plaintiff sought to show that the transfer was a result of either undue influence or a forged signature on the transfer document. The Plaintiff further argued that the Defendants failed to rebut the presumption of a resulting trust.
The testatrix had 5 children and left a will detailing that her estate was to be given entirely to her daughter, Marnie, which effectively disinherited her 4 sons. Two of her sons, Brian and Robert (twins), had received nothing under the will and brought an action to vary her will as they felt it did not make adequate provision for them.
The value of the estate was ~$500,000