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 litigation had been commenced many years ago in 2003 and had essentially been sitting stagnant as no substantial steps had been taken to move the matter forward. The plaintiff, the wife of the deceased, had begun the action after her husband’s death in 2002 and the action was brought ahead after her subsequent death in 2015. The action was brought by the plaintiff’s personal representative and the claim sought variation of the late husband’s will as it did not make adequate, just and equitable provision for her.Importantly, since the testator’s death, the plaintiff had been living in the matrimonial home and the executors of the estate, the testator’s children, had been providing some money from the estate to assist the plaintiff’s living situation.
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 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.
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.
The Deceased’s Will named a niece as Executor and sole beneficiary of the estate. Through the regular path, the named niece brought an application for probate and was issued a grant. The Deceased’s nephew then brought an action against the niece in her personal capacity, and in the capacity as executor, challenging the will claiming the Deceased lacked testamentary capacity and was unduly influenced by the niece. The nephew sought an order that the will was invalid and damages for unjust enrichment and quantum meruit. The niece also sought an order including one under s. 86 of the Trustee Act for advice and directions respecting management or administration of trust property and that she was entitled to use estate funds to defend the civil action.
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.
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.
The deceased passed away on January 5, 2015 with her spouse passing away several hours earlier. The couple lived in a common law relationship for approximately 35 years until they married in 2012. The applicant, the deceased's granddaughter, had been appointed executrix of the will and had found a number of documents in a funeral box while searching for her grandmother's testamentary documents. She then applied for determinations that two handwritten records represented the testamentary intentions of her grandmother and were fully effective as though they had been made as or part of her will.
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.
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.