Save Your Final Wishes - Court Applies Curative Provision to Rescue Dying Wish

The petitioner, Debi, sought a determination pursuant to s. 58 of WESA whether the signed document of her deceased father, Larry, dated February 7, 2016, represented his intentions to replace his Will dated August 11, 2015.  The petition was not opposed.  This case was another example which highlighted the use of the s. 58 curative provisions of WESA to assist the court in determining an individuals' wishes after death.   

Does it matter where you are domiciled? It sure does! A Will was revoked based on a marriage in 2013

The case of Sato v. Sato 2017 BCSC 1394 highlights the analysis in determining where an individual is domiciled.  Where an individual is domiciled becomes important when it influences whether or not a will may be revoked due to a marriage – ss. 14 and 15 of the former Wills Act, R.S.B.C. 1996, c. 489 provided that the marriage of the testator of a will revokes the will, unless the will was made in contemplation of marriage. 

Are you in a common-law relationship? Yes? No? This BC Court decision may have your answer.

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. 

Daughter Receives $185,000 From Will for Value of Mother's Home - Home was Sold Before Mother's Death

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?

Adopted Children Cannot Vary the Wills of their Biological Parents - WESA confirmed

The Plaintiff was born to the testatrix, but was subsequently legally adopted when he was ~1 year old.  The Plaintiff later reunited with his birth mother and they enjoyed a loving relationship.  In his birth mother's will, the Plaintiff was to be left a portion of her estate.  The Plaintiff brought an action seeking variation of the will pursuant to s. 60 of WESA, but the Executor of her estate brought an application to dismiss the Plaintiff's claim arguing he did not have standing to advance such an action under WESA.  

Wife Wins Fight for Deceased Husband's Sperm: Sperm Released

This curious case arose after the deceased had struggled with extensive medical conditions, but he and his wife had wanted to have a family together and agreed the wife would use his reproductive material to conceive a child.  The couple had agreed that regardless of whether he died, the wife would use his reproductive material to conceive.  The deceased died intestate and the estate passed to his wife whereupon she applied for a declaration that the human reproductive material of her husband was her sole legal property and that it should be released to her for her use absolutely to create embryos. 

Sheikh's Daughter Removed As Administrator In Hotly Contested Estate Litigation - Appeal Dismissed

In 2003, Sheikh Salem Homoud Al-Jaber Al-Sabah passed away intestate and left 15 beneficiaries.  His family has since been caught up in estate litigation across several countries as he held properties in Kuwait, Gibraltar, London, and B.C.  His beneficiaries included his two sons, his two wives, and his seven daughters.  While two of his daughters did not participate in this litigation, one, Sheikha Salem Homoud Al-Jaber Al-Sabah, is the appellant in this action.  She sought to appeal an order from an application revoking the grant of letters of administration of her father’s estate (located in B.C.).  The chambers judge had found the daughter had not exercised reasonable diligence in providing notice to the beneficiaries of her intention to apply for administration of the estate in BC and she had failed to disclose relevant information.  

Widow Transferred Vancouver Home Into Her Name - Subsequently Removed as Executor Due to Conflict of Interest

The petitioners, the sons of the deceased, applied to remove the executor and trustee under the last will of their father.  With their application, they also sought an order appointing them as executors and trustees in substitution of the respondent.  The respondent, the widow, sought a number of orders.  After isolating the issue, the court granted the respondent’s application to remove her and place them in the position of executor and trustee of their father’s estate.

Single Mom In Financial Need Awarded 100% Of Her Mother's Estate - Court Stepped In And Varied Will

The Plaintiff, the 25 year old daughter of the deceased, brought an application, by way of summary trial under Rule 9-7, seeking an order varying the will of her mother.  Her mother had left the residue of the estate, consisting of annuity payments under structured settlement, to her husband with intention that he would provide for her daughter out of the residue at his discretion.  The deceased had passed away June 1, 2013, prior to Part 4 of the new Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] coming into force.  Therefore, the court’s power to vary the will derived from the former provisions of the Wills Variation Act, R.S.B.C. 1996, at ss. 2 and 5.  

99 Executor Problems, But a Draft Will Ain't One - Draft Will Not Found to Be Valid

Candace Yates sought determination pursuant to s. 58 of WESA whether the unsigned, draft will of Jann Louise MacInnis Bailey, dated December 2014, represented her intentions to replace or alter her last will and testament dated January 29, 2008. 

Ms. Cates was Ms. Bailey’s lawyer and had drafted the will of 2008 and drafted the unsigned will of 2014.  She is the named executrix in the 2008 will and the co-executor in the 2014 draft will and requires the court’s determination otherwise she is unable to swear the affidavit required of an executor under the Supreme Court Rules for probate. 

Ms. Cates’ position is that the 2014 draft will, in whole or in part, represents the testamentary intention of Ms. Bailey.  

Do I Get the House? If I am a Joint Tenant, Do I Hold My Parents' House in Trust?

McKendry v. McKendry, 2015 BCSC 2433

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.  

Friend of Deceased Hoped To Use WESA To Cure New Will - Court Dismisses Claim

Mr. Massam died September 21, 2011 aged 85 and left behind neither a surviving spouse nor children.  Mr. Massam had executed a will in 1974 (“1974 Will”) while he was with his former spouse, Margaret.  The 1974 will provided that he left the residue of his estate to Margaret, with a gift to her son Terrance.  Mr. Thurston, Mr. Massam's friend, asserted that an unsigned document dated September 20, 2011 ("Unsigned will"), should be held as the last will and testament.  Mr. Thurston would benefit from the unsigned will as it appointed him as executor and provided a specific amount of money to him.