Foreign Will Mistakenly Revoked Canadian Will Creating Intestacy

The August 2011 decision of the Ontario Court of Appeal in Robinson’s Estate v Robinson is a good example of the pitfalls that may inadvertently occur when a testator has wills prepared in different jurisdictions.

It is becoming increasingly common for the general public to own assets in two or more countries.

It is also generally advisable to have a will pertaining to assets owned in each jurisdiction.

Thus this recommended practice may mean that a person may end up with perhaps two, or three wills.

The danger that can occur is that one subsequent will might inadvertently revoke a previous foreign will.

This is exactly what happened in the Robinson case.

The testator executed two separate wills, one to deal with property held in her native Spain, and one to deal with her Canadian property.

The 1st will clearly indicated that another will existed dealing with Canadian property.

The lawyer who drafted the Canadian will and the later revision, did not ask about other wills or location of assets.

The Canadian will accordingly contained the standard revocation clause revoking all previous wills.

The lawyer and estate administrator only found out about the European will after the testator’s death, and after some assets had been distributed.

An application was made to the court to rectify the will.

It was refused on the basis that the intention of the testator was set out in the will, and the testator was only mistaken as to the legal effect.

That decision was appealed and the appeal was dismissed.

Affidavit evidence tendered by beneficiaries and the estate trustee as to the testator’s intention was not admissible.

The court could not find that the testator did not intended to revoke his European will.

The court held that the claims of the estate trustee and beneficiary were based on the premise that the court could make findings of intention on the part of the testator.

Since the will was unequivocal, there could be no exception to show that the intention of the testator should not have been honoured.

Harsh as the decision might seem, staging-disinherited-staging.kinsta.cloud is of the opinion that it is correct.

It would appear that the appropriate remedy is to sue the lawyer for negligence, for failing to adequately canvass with his client as to other wills and other foreign assets, and drafting the will accordingly so as to not revoke the other wills.

Adopted Daughter Awarded Equal Share In Wills Variation Claim

tug of warAdopted Daughter Awarded Equal Share

Laing v Jarvis Estate 2011 BCSC 1082 is yet another Wills Variation claim in British Columbia, where the courts have awarded an equal share to a disinherited child, in this case, an adopted one.

The plaintiff was 55 years of age and was adopted by the deceased who died in 2007 at age 84.

The deceased left everything to her natural son and there was no mention whatsoever of the plaintiff in the will.

The notes taken by the lawyer who prepared the will recorded that the plaintiff had had no contact with the deceased “in years”, and that the plaintiff had disowned the deceased.

The plaintiff was married and had 2 young children in her care, one of which was disabled. Her husband was unemployed and they had together almost no assets.

The court awarded the plaintiff an equal share in the estate.

The evidence did not confirm that the plaintiff had no contact with the deceased and years, or that the plaintiff had disowned the deceased.

The court found that while there might have been long periods where the plaintiff and the deceased did not see each other, they were in contact by telephone. The plaintiff also had medical and family reasons for not traveling a long distance to visit her mother.

Accordingly there were no valid and rational reasons for the deceased at the time of her death, to disinherit her daughter.

The court followed an increasingly strong line of case authorities to the effect that there is a presumption that children should share equally in their parents estates.

The court made the following significant quote:

In McBride v Voth, 2011 BCSC 443, Mdm. Justice Ballance considers the proposition of treating adult independent children equally when considering the act. She states at paragraph 134:

” On the other hand, in Vielbig v Waterland Estate (1995) 1 BCLR (3d) 76, (CA), the Court of Appeal held that equal treatment among independent adult children is prima facie favor from a moral duty standpoint. In Ryan, the court held that in the absence of relevant reasons for a non-equal distribution, there was a reasonable expectation that adult children were shared equally, you don’t know legal obligation requiring equal distribution exists. The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges at testator’s moral duty was applied in Inch. There, the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers.

staging-disinherited-staging.kinsta.cloud strongly approves of this increasing trend by the court to treat adult independent children equally on a prima facie basis.

Wills Variation Claims Are Generally Well Suited For Summary Trial Disposition

Summary Trial Disposition

Wills Variation claims in British Columbia are generally speaking well-suited for a summary trial disposition.

A summary trial is heard by a judge who reads at affidavit materials and listens to submission by counsel.

This is supposed to the more traditional route of witnesses testifying in the witness stand.

A summary trial proceeding is generally speaking faster, cheaper, less stressful, and quicker to be tried that the traditional route.

Where a summary trial will definitely not work, is when there is a discrepancy in the credibility amongst the major witnesses in the trial.

The Court is very loathe to determine an important issue such as credibility based on an affidavit, rather than viewing the demeanor of the witness in the witness stand

In making a determination whether a trial should be heard summarily, the general rule is set out in Inspiration Management Ltd. v.McDermid St. Lawrence Ltd., 1989 CanLII 2728 (BC CA), (1989), 36 BCLR (2d) 202 (C.A.). Mr. Justice McEachern C.J.B.C., for the court, stated:

[48] In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question.

[10] In RC Hotel Ventures Ltd. v. Meristar Sub 2C, L.L.C., 2008 BCSC 918 (CanLII), 2008 BCSC 918, at para. 13, Mr. Justice Masuhara listed a variety of factors that may be considered in assessing the suitability of a trial being heard by summary trial. These factors are:

(a) A court should be reluctant to decide isolated issues in the absence of a full factual matrix and should not decide issues on the basis of assumed facts.

(b) While the court may in certain circumstances resolve issues and find facts in the face of conflicting evidence, it should be reluctant to do so where there are direct conflicts in affidavit evidence, the resolution of which will require findings with respect to credibility.

(c) A court should be reluctant to resolve factual issues in the absence of admissible evidence where such evidence may well be tendered in admissible form at a subsequent trial.

(d) A court should be reluctant to “slice off” and decide isolated issues and circumstances where resolution of those issues will not resolve the litigation or will only resolve the litigation if answered in a particular way. In such circumstances, the 18A applicant will be required to demonstrate and the court expected to decide that the administration of justice including the orderly and effective use of court time will be enhanced by dealing with the separate issue brought forth by the applicant.

(e) The matter will not suitable for resolution by Rule 18A where resolution of a particular issue or issues in the summary trial will require that the court make findings or rulings which will impact on parties or issues which are not before the court on the application. In particular, the court hearing the summary trial must not decide the issues on the basis of facts which might be inconsistent with the findings of the judge at trial.

(f) In some cases, the complexity of the issues raised or the volume of the material before the court may be such that the matter is unsuitable for resolution by summary trial.

As a matter of practice, staging-disinherited-staging.kinsta.cloud attempts to resolve most of her estate litigation disputes by mediation or summary trial firstly, rather than resorting to a trial by witnesses.

Administration of an Estate Pending Litigation

Estate Pending Litigation

It is very common in contested estates that the assets of the deceased are not properly dealt with in a timely manner as a result of the dispute.

This is particularly the case when the court action relates to the actual validity of the will and a dispute arises as to who if anyone, is the appropriate personal representative of the deceased.Continue reading

BC Contested Estates- Gold Diggers

Gold Digger "Wife" Gets 0,000 from .5 MillionVulernable Victim

Trevor Todd and Jackson todd have handled contested estates for over sixty combined years and have experience in dealing with ” gold diggers”.

One of the most outrageous recent cases of blatant gold digging is Wu v Zhang 2011 BCSC 1205.

This a much younger gold digger, who married a much older, physically and mentally vulnerable man, shortly before his death.

At the time the couple met in 2006, Mr. Wu who had been recently widowed and was unable to care for himself or his home.

Mr. Wu had a home and other assets worth approximately $ 3.6 million.

Ms. Zhang testified that Mr. Wu had pleaded with her to take care of him and that she did so from the day they met.

She further testified that although she had little interest in material wealth but that Mr. Wu had insisted on transferring property to her out of gratitude.

The reality was that Wu lived in his own home, in one squalid room with a hot plate, small fridge and microwave. He lived in filth, unwashed and unclean and had open ulcers on his legs.

In 2008 Vancouver Health found him living in these deplorable conditions.

They had him assessed and declared incompetent as of December 16, 2008.

Nevertheless, Mr. Wu signed a Power of Attorney to Ms. Zhang on April 4, 2009.

In August 2009 the couple married and less than a month later he was admitted to intensive care. By September 16 2009, the court had declared Mr. Wu to be incompetent.

Under the “marriage agreement” prepared by Ms. Zhang, Mr. Wu purported to give her all of his lifetime accumulated savings.

The Public Guardian brought an action on behalf of Mr. Wu to recover the valuable property that Ms. Zhang said Mr. Wu had gifted her.

The Court found the purported marriage agreement to be invalid as a total fabrication.

The Court did not accept Ms. Zhang’s evidence and dismissed her claims to the property and to spousal support.

The court instead treated the matter as short term marriage, and awarded Zhang $150,000 from the sizable estate.

But for the involvement of Vancouver Public Health and the Public Trustee Ms. Zheng may well have successfully retained assets in excess of $3.5 million.

Court Declines to Expand Definition of Child

child definition

Child Under Wills Variation Act Defined and Not Expanded

The recent British Columbia Court of Appeal decision in Peri vs. McCutcheon 2011 BCCA 401 clarifies that the Wills Variation act of British Columbia only provides for claims brought by biological or adopted children.

The action was brought by a 55-year-old female plaintiff who was named as a child of the wealthy deceased on her birth certificate, but was found to be not his biological child through DNA testing.Continue reading

Contested Estates, Vancouver Lawyer &Wills Variation Spouse vs. Child

Trevor Todd and Jackson Todd have handled contested estates including pursuant to wills variation proceedings for over 60 combined years

 

Hall v Korejwo 2011 BCCA 355 is a Court of Appeal decision involving a wills variation dispute between a 60-year-old adult son of the deceased, and the 65-year-old surviving common-law spouse.

The deceased was estranged from both of his children for most of his life.

Shortly before his death in 2008, he repaired his estrangement with one of his sons, but remained estranged from the other.

His will stated that he had already provided for his other estranged son, in addition to him having inherited most of his mother’s estate, to the exclusion of his brother.

The deceased estate was worth approximately $438,000.

In his will he left $43,000 to various family members, $10,000 plus a car to the plaintiff son, and the residue of the estate to his common-law spouse of 4 years.

The 60-year-old son was unable to work by reason of disability, had $90,000 in assets, and limited income.

The 65-year-old common-law spouse had no assets and limited income.

The trial decision is somewhat unusual in that the judge increased the plaintiff’s award by an additional $10,000, with a life estate in the residue to the common-law spouse, and a gift over to the plaintiff in the unlikely event he should survive her.

The Court of Appeal allowed the appeals of both the adult plaintiff and the common-law spouse.

The will was varied to give the plaintiff son a total of $60,000, the $43,000 to family members was left unchanged, and the residue of the estate was given to the common-law spouse.

The court gave a clear statement as to the legal obligation of the deceased to provide for his surviving common-law spouse. The decision at paragraph 33 and 34 also quotes from the leading decision of the Supreme Court of Canada, Tataryn v Tataryn (1994) 2 SCR 807

The court considered whether the provisions of the Estate Administration act has any direct role to play in concerning what is adequate just and equitable under section 2 of the Wills Variation act.

The court concluded that the Estate Administration act merely represents the default position when there is no will and the testator’s wishes are unknown. They therefore cannot directly affect the considerations that govern applications under the Wills Variation act, when the testator’s intentions are clearly set out in the will, and the court is entitled to consider a range of options in judging whether it should defer to testamentary autonomy.

Rectification of Error in Will Refused

rectification 2Rectification of Error in Will Refused By Ontario Court of Appeal

Robinson Estate v Robinson 2011 CarswellOnt 5819 once again demonstrated the limited jurisdiction that exists in the courts to remedy a mistake and omission made in the deceased’s will, even by the drafting lawyer.

The deceased testator executed 2 separate wills, one was to deal with property held in her native Spain as well as England, and a subsequent one to deal with her Canadian property.Continue reading

Court Has Very Limited Jurisdiction to Add Words to A Will

Rectification of Will Refused

Re Ali Estate 2011 BCSC 537, involves an application to rectify a will prior to its admission into probate.

The deceased died owning all the shares of a company operated with his brother.

The testator’s estate was valued at $9 million, including the company, which was worth approximately 4.5 million.

The testator had significant monies owing to him from the company for shareholders loans and a promissory note.

The testator left 70% of his interest in the company to his brother.

Two children of the testator, in related litigation, commenced a wills variation action.

The brother, a co-executor, applied for rectification of the will by adding the words ” including my shareholders loans and promissory notes owing to me” in defining the testator’s interest in the company.

The court dismissed the petitioner’s application to add the words.

The court discussed the interesting historical distinction between the court sitting as a court of probate, and the court sitting as a court of construction.

These two concurrent jurisdictions have historically been exercised in separate proceedings.

When ruling upon the validity of a will, the court sits as a court of probate, and when interpreting a will, it sits as a court of construction.

Different rules apply for each court.

For example, except in very restricted circumstances, the court is not permitted to review direct evidence of the testator’s intentions on a construction application.

The court in exercising its probate jurisdiction, does have a limited power to rectify the mistake in a will where the language of the will fails to express the testator’s actual intentions.

A will is only valid to the extent a testator knew and approved of its contents.

It is well-established on the authorities that before will is admitted to probate, the court may, in the exercise of its probate jurisdiction, delete words from a will that have been included without the testator’s requisite knowledge and approval.

The court concluded that the weight of authority affirms the principle that when the court sits as a court of probate, it has no jurisdiction to add words to a will.

The court stated ” that the words that the petitioner seeks to add to this will are an attempt by him, in the guise of a rectification application, to add new language to the will to accord with, or to achieve, the interpretation desired by the petitioner.”

staging-disinherited-staging.kinsta.cloud agrees.

The court then to the somewhat unusual step of ordering the petitioner to set the hearing of the construction application with the affidavits containing only that evidence which is properly admissible on the construction application. The matter was to be set before the same judge.