Will Variations FAQ

  • Can a parent disinherit an adult child?

    • Where an adult child is excluded from her parent’s estate, she can apply under the B.C. Wills Variation Act to share in the estate.
    • The excluded child has the onus to prove that her parent did not have valid and rational reasons for disinheriting the child.

    We represented a son who was the sole beneficiary named in his mother’s will. His sister challenged the will. In her will, the mother stated that the reasons she was not providing for her daughter were that she had raised the daughter’s child as her own and that the daughter had been estranged from her for decades.

    The Judge said that the mother’s reasons were valid because the facts were true. Secondly, the reasons were rational in that there was a logical connection between the mother’s reasons and the disinheritance.

    The Court decided that the will would stand and our client would receive all of his mother’s estate.

    If you are in this situation in British Columbia, we can help. Contact us.

    Read the case: Berryere v. Berryere

  • Can a person inherit if they caused the deceased’s death?

    • If the death was caused by a crime, such as murder or arson, no.
    • If the death was unintentional, such as by an accident or caused by a person who was insane, yes.

    These rules were recently confirmed by the court in Re Fenotti Estate.

    If you have an estate-related problem, we can help. Contact us.

    Read the case: Re Fenotti Estate

  • The will sets out why I was disinherited, but the facts are untrue – can I challenge the will?

    • Yes. The facts that the parent relies upon to disinherit must be true.
    • In addition, there must be a logical connection between those facts and the act of the disinheritance.

    In Schipper v. De Lange the mother left 25% to her only daughter, and the rest to two nephews. The stated reasons were that the daughter did not visit, showed no interest in her parents despite their illness and was financially well off.

    The court found that none of these reasons were true. The parents had concealed their ill health from their daughter. The daughter called on a weekly basis. She lived in Hawaii, but visited the parents regularly, although less often recently due to her financial setbacks. She was not well off.

    The court would have given the daughter 75% of the estate. However, since she had received a gift of $110,000 during her parents life, she was awarded 50%.

    If you have questions about a gift in a will, we can help. Contact us.

    Read the case: Schipper v. De Lange

  • The deceased gave away his assets before he died – can anything be done?

    • Maybe. The deceased is entitled to give away his estate, but not all transfers to another person are made with the intention of making a gift – e.g. a transfer of a bank account into joint name may only be to allow another person to pay bills.
    • If a transfer of property is made for less than a fair market price, there is a presumption that the recipient holds the property in trust for the deceased.
    • The court will consider any evidence that shows the intention of the deceased.
    • If the recipient cannot prove that a gift was intended, the gift goes back into the estate.

    The Court of Appeal considered this in Fuller v. Harper. The deceased had a falling out with his son and stopped talking to him. Before he died he transferred some real estate into his own and a friend’s name, in joint tenancy. This meant that when he died the entire property would belong to his friend. The son sued, claiming that the friend held the property on a resulting trust for the estate of his deceased father.

    The court said the gift was valid. The deceased clearly intended to make a gift of the property to his friend when he transferred the property into joint tenancy. He gave the gift to his long-standing friend to keep the asset out of his estate, so that his estranged son would not be able to make a claim against it.

    Gifts can strip the estate of its assets, but sometimes those gifts can be returned to the estate. We can determine if this is possible. Contact us.

    Read the case: Fuller v. Harper

  • Is the estate big enough to satisfy all the claims?

    • Legal claims will be satisfied first, with moral claims second, if the estate is big enough
    • Whether the estate is big enough depends on the claims being made, and the circumstances of the claimants.

    In Gray v. Gray the estate was close to $750,000. The battle was between four adult, independent children who all had moral rather than legal claims to the estate. Three children were given $10,000 each, and the balance went to the fourth child. He argued that the estate was not big enough to satisfy all of the moral claims of the children. The court disagreed. None of the children were wealthy and a share of the estate could make a real difference in each of their lives.

    In Gray v. Nantel the estate was only $93,000 but the Court of Appeal did not hesitate to divide up the estate among four children.

    Each case is unique, but we can provide answers for BC estate problems. Contact us.

    Read the cases:

  • My father’s care giver is after his money – can we stop this?

    • This form of elder abuse is becoming more common. Seek legal advice immediately before your relationship has been destroyed by the care giver, or your father dies.

    Hart v. Cooper involved a man who was 78, had been diagnosed with cancer, and was given two months to live. He suffered from episodes of confusion and had to be admitted to the hospital because he was unable to care for himself. He was scheduled to see a psychiatrist for an assessment of his mental capacity, but his 58 year old girlfriend of 8 months took him out of the hospital on a three day pass and did not bring him back for over two weeks. They were married two days after she took him out of the hospital. His two children were not informed of the marriage. In the next two weeks the wife took steps to transfer various assets of the man into her name. The man’s children learned about the marriage, and one of them travelled to see him, accompanied by the police. When they spoke to him alone he said he had been kidnapped and wished to return to the hospital. His physical and mental condition had deteriorated while he had been out of the hospital, and he died within a week.

    The man had a will which left his estate to his two children. However, the Wills Act in force at that time said that a will is revoked by marriage. This resulted in the man’s estate being divided between his new wife and his children. The children challenged the marriage, saying that it was invalid because their father did not have the mental capacity to enter into a marriage.

    The judge disagreed. A person is mentally capable of entering into a marriage contract if he has the capacity to understand the nature of the contract and the duties and responsibilities it creates. The judge said that the contract is a very simple one — not at all difficult to understand. The medical records showed that the man had periods of lucidity during the last month of his life, and the witnesses to the marriage ceremony testified that he seemed to be lucid. The marriage was valid, so the wife got a large part of the estate.

    It is important to take steps before your loved ones die in these cases. We can help. Contact us.

    Read the case: Hart v. Cooper