Wills & Estate Lawyers in Surrey
How about devoting more time to planning your assets than planning a vacation? Can’t think of a trusted law firm? The lawyers at MacMillan Tucker can help you with wills and estate planning in Surrey, BC. We strive to relieve the stress of estate planning and help our clients with will preparation, property transfers, business succession planning, power of attorney, representation agreements and more. Our lawyers will ensure that your assets are handled in the way that you intend them to be!
Go through the articles below and learn about the ways you can protect your future.
IT’S THE LAW – By Corey J. Bow
DAUGHTER DESERVES A SHARE
Bill and Elenor had a troubled marriage. Elenor left Bill a couple of times during their 15-year marriage. They had two kids: a son, Jimmy, and a daughter, Julie. Bill was abusive to his wife and children. When Elenor left Bill the first time, she took the kids. They were quite young. Julie refused to see her father....
IT’S THE LAW – By Corey J. Bow
DAUGHTER DESERVES A SHARE
Bill and Elenor had a troubled marriage. Elenor left Bill a couple of times during their 15-year marriage. They had two kids: a son, Jimmy, and a daughter, Julie. Bill was abusive to his wife and children. When Elenor left Bill the first time, she took the kids. They were quite young. Julie refused to see her father when he came to visit. After a while, Elenor had no choice but to move back in with Bill. Unfortunately, the abuse continued. Elenor left Bill a final time, but this time, she left Jimmy and Julie with Bill. The mental and emotional abuse of Julie continued. As she grew into a teenager, the abuse turned inappropriately sexual. Julie was in and out of foster care and eventually left home at age 16. She had minimal contact with her father then, with occasional messages at Christmas or birthdays.
Bill married Joanne and was with her for 8 years when he died. Joanne came to the relationship with no assets, but Bill put his home into joint title with Joanne before he died. Therefore, that whole house was transferred to Joanne outside of his will when he died. That did not matter much because he left his entire estate to Joanne anyway. He did not leave anything for Julie or Jimmy. He told the notary, who made up the will, that he had no contact with Julie for 10 years.
Julie filed a will variation lawsuit saying that Bill did not adequately provide for her. Joanne defended the case, saying that Julie was estranged from her father, so he had good reason to exclude her from the will. She also said that she had a higher claim to the estate since she was a spouse. Plus, Bill’s wishes in his will should be respected.
By the time of the trial, the estate was worth about $800,000. The house that Joanne received by survivorship was worth about $1,000,000. Julie was 41 years old, married to a successful businessman, and did not need support. She was asking that the will be varied so that she could inherit $500,000.
If you were the Judge, how would you decide?
The judge decided that the will should be varied. When deciding about varying a will, the court has to look at competing claims between a spouse and a child. Usually, the spouse has a higher claim to an estate as the spouse has a legal claim similar to what they would be entitled to in a divorce. The spouse also has a moral claim, as our contemporary Canadian standards expect a willmaker to provide for a spouse over an adult child. Even self-sufficient adult children, however, have a moral claim to an estate. Since Bill’s abusive behaviour caused the estrangement, Julie still maintained a moral claim. Had Bill been a good father and Julie had been estranged on her own, the result may have been quite different as Bill’s wishes in his will would have superseded Julie’s moral claim to a part of the estate. In the end, the Judge gave an award of $250,000, representing about 15% of Bill’s assets.
If you have been written out of a will or are being sued by a disinherited person, please give us a call to discuss your options.
Corey J. Bow is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers can answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By George Gunnink
THE FAVOURED SON
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – By George Gunnink
THE FAVOURED SON
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Traditional Tonia immigrated with her husband from China to Canada in 1969. Until she died in 2021, she held her cultural traditions quite dearly. One of those cultural norms was to favour her only son, Preferred Peter, over her only daughter, Doting Dolly. For instance, she consistently gave Peter the best cuts of meat at dinner, prepared meals around his schedule, and allowed him to park his car in the garage. Tonia gave no such perks to Dolly, expecting her to park on the street, and frequently expressing disappointment that Dolly was not following a traditional Chinese path for women. Tonia also often told Dolly that Peter would receive the bulk of her estate because he was the son. She showed this by making considerably lopsided gifts to Peter: he got joint title to the family home and about ½ of the sales proceeds when she sold a couple of rental properties. By contrast, Dolly received small occasional cash gifts, despite being as much involved and helpful to Tonia as Peter was, although in different ways. On her death, Tonia left a will that gave Dolly and Peter each a ½ interest in a remaining rental property, while confirming the gift of the family home to Peter.
Dolly was upset and challenged the will on the basis that it did not make “adequate, just and equitable” provision for her. She argued that the judge should consider all that Peter received during Tonia’s lifetime, and Tonia’s bias against her because she was female. She urged the judge to apply current societal standards to trump the traditional norms that led to Tonia’s unfair treatment of Dolly.
What would you do if you were the Judge?
The judge sided with Dolly and decided that Tonia did not act as a fair British Columbian parent seeking to discharge her parental duty. The court found that Tonia displayed a clear gender bias that did not meet the standards of contemporary justice and varied the Will to give Dolly a larger share of the rental property.
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – BY STUART D. ROBERTSON
IS IT A WILL?
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – BY STUART D. ROBERTSON
IS IT A WILL?
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Pam recently passed away. She had two brothers who she stayed in regular contact with, and a sister from whom she had been estranged for over 40 years. Pam wanted to ensure that her estate went to her brothers, and that nothing went to her sister. Prior to her passing, Pam had prepared a handwritten document that she titled as her “Last Will and Testament”. She clearly outlined in the document that she wanted her estate to be equally divided between her brothers and that nothing was to go to her sister. It went on to say that her brothers were to make charitable donations on her behalf to organizations that would benefit her favourite animals, namely, elephants, bears, lions and Chow Chow dogs.
However, the issue was that the document did not comply with the requirement of being a valid will. In particular, her signature on the document had not been witnessed by two or more witnesses. The brothers wanted to ensure that Pam’s wishes were respected and ended up applying to court. Would the court validate the document as Pam’s will?
What would you do if you were the Judge?
Despite the handwritten document not strictly conforming to the requirements under s.37(1) of the Wills, Estates and Succession Act, the court has the option of “curing” any deficiencies in the preparation of a will. In other words, the court can declare a document to be a valid will. In this case, it was determined that the document, which was confirmed to have been handwritten by Pam, reflected Pam’s testamentary intentions and was intended to be Pam’s last will and testament. As a result, the court ordered that the handwritten document was Pam’s last will and testament and her brothers could proceed accordingly.
Cases such as these are always fact specific. If you have a situation similar to the above, we recommend you obtain legal advice to determine your rights.
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, personal injury, negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By TYLER B. DENNIS
REMOVING A GRINCH
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide the outcome? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…
IT’S THE LAW – By TYLER B. DENNIS
REMOVING A GRINCH
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide the outcome? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…
In the town of Whoville, located in the Kootenay’s, Old Mayor Who of Whoville passed away in December 2022 leaving a last will and testament that left his estate equally split between his old friend the Grinch and his niece little Cindy Lou Who. The Will named the Grinch as his executor and trustee. His main assets were his house located up on Mount Crumpit, just outside of Whoville, his Electro Who-Cardio Floox, his Floo-Floober and his Jing-Tingler. Along with approximately $50,000 in the Whooville Credit Union.
After Mayor Who’s death, the Grinch slowly began the process of obtaining a Grant of Probate from the BC Supreme Court, providing notice and a copy of the Will to little Cindy Lou Who, conducting a Wills search and giving notice to the Whoville Credit Union. He also distributed the Floox, the Floo-Floober and Jing-Tingler to Cindy Lou Who as he had not wanted them.
However, the Grinch grew lazy and tired. He also became annoyed with Cindy Lou Who and the wider Whoville due to large Christmas parties they held each year. In his anger and annoyance, he began to delay finalizing Mayor Who’s estate. He had not distributed the money or sold the house yet. All he had done was apply to the Court and obtain a Grant of Probate and distribute the mayor’s items but no other action was taken.
Little Cindy Lou Who tried to get the Grinch to finalize the estate’s administration but after repeated failures to do so she applied to the BC Supreme Court for an order to remove the Grinch as executor and trustee and appointing herself in his place.
If you were the Judge, how would you decide?
The Courts in BC are very hesitant to exercise their powers in such a way as to contradict the wishes of a testator as contained in their last will and testament. This includes removing the individual who the deceased has appointed as executor and trustee.
The main concern that will guide a Courts decision is welfare of the beneficiaries, which if there are multiple beneficiaries mean the collective wellbeing. A Judge will seek to determine if the conduct of the executor and trustee has endangered trust property or shown a want of honesty or of proper capacity to execute their duties, or a want of reasonable fidelity. A Court will not remove an executor and trustee simply because there exists dissension or conflict between the executor and trustee and the beneficiaries.
In this cause the Court found that the Grinch, while slow in his actions, had taken steps to complete the administration of the estate (including obtaining a Grant of Probate, and transferring the items). Also, while the Court action was underway the Grinch’s heart grew 3 times the size and he distributed the cash to him and Cindy Lou Who. The Court decided the welfare of the beneficiaries and the trust property had not been affected and they upheld the Grinch’s appointment. He remained on and thanks to his new sized heart, completed the administration and even had a chance to join Cindy Lou Who for dinner and carve the roast beast.
Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, real estate, business law, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By George Gunnink
WHAT’S THE ISSUE?
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – By George Gunnink
WHAT’S THE ISSUE?
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Grandma Jill left a will that divided her estate between her two children, Bill and Lil or, if either of them died before her, that child’s share was to be divided among the “issue” of that child. As it turned out, Bill and Lil died before Jill and two individuals, Will and Sybille, argued that they were Bill’s children. They were raised by Bill, Bill called them his children when speaking of them (including in his life insurance designation), they were part of Bill’s life at the time that Jill’s will was written and Jill knew them very well. Their own mother gave a sworn statement that there was no reason to believe that they were not Bill’s children. Seeking clarity on their biological relationship to Jill, another judge had earlier ordered that Will and Sybille submit to DNA testing. Will did, while Sybille declined to do so. The lab that conducted the tests determined that there was 0% chance of Bill’s paternity of Will.
The administrator of the estate (appointed because the executor was not able to act) asked the court for help: what does “issue” actually mean? Does it simply mean biological descent, or does it mean those whom a person treats as their children? Whom should I be giving the estate to?
What would you do if you were the Judge?
As it turns out, the judge had serious questions about the reliability of the DNA test results but indicated that in any event she preferred a more subjective approach. She was not satisfied with “issue” only meaning biological descendants. Instead, she applied what is known as the “armchair rule”: seating myself in the armchair of Grandma Jill when she made her will, what was her most likely intention? She found that Jill would have believed that Will and Sybille were Bill’s children and therefore must have intended that Bill’s share would go to them if Bill died before she did. Otherwise, she would not have referred to Bill’s issue (he did not have children apart from Will and Sybille).
While this may have been Jill’s intent, who can be sure? This case makes clear how important it is for a will to be written in clear language that communicates a will maker’s intentions well!
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Daniel Shim
UNCLE STAN'S WILL IS ALL FIRED UP!
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – By Daniel Shim
UNCLE STAN'S WILL IS ALL FIRED UP!
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Stan Pines lived in a small town by himself and spent his time with his friends, Wendy, Soos, and Bill. In 2010, he made a will which stated that all his assets will be donated to an organization called Blind Eye Society, a non-profit organization helping those who are blind or have low vision. The 2010 Will did not have any witness signatures. However, Stan told his friends his plan to make the will. After the will was made, he showed his friends the will.
In the beginning of 2012, Stan’s niece and nephew, Mabel and Dipper, moved to the small town to live with Stan. Stan initially did not like the kids living with him, but they went on many adventures throughout the year and bonded. Mabel and Dipper became close to Stan’s friends as well.
After a year of living together, Stan told Mabel, Dipper, and his friends that he intended to make a new will where he will divide his assets to Mabel and Dipper. This time, he hired a lawyer and made a new will in 2013, revoking his 2010 Will. Wendy and Soos signed as witnesses. The lawyer kept the copy and Stan kept the original will under his bed. Throughout 2013 and 2014, Stan repeatedly told his family and friends about the 2013 Will.
In late 2014, Stan accidentally caused a fire in his house that burned most of his house down and unfortunately, Stan did not survive the fire. The fire also destroyed the 2013 Will. Mabel and Dipper sought the lawyer and got the copy of the 2013 Will.
Mabel, Dipper, and Stan’s friends wanted the copy of the 2013 Will to be the valid last will and testament of Stan, while the president of the Blind Eye Society wanted the 2010 Will to be the valid last will and testament of Stan. The president of the Blind Eye Society did not object to Stan’s testamentary intention under the 2013 Will, but only that the original copy was no longer available.
What would you do if you were the Judge?
In order for a will to be valid, it needs to be in writing, signed at the end, and properly witnessed. If the will is lacking any of these requirements, the court can still “cure” the deficiencies of the will and validate it.
For the 2010 Will, although it is missing witness signatures, Stan repeatedly told his friends of his intention and showed the will to his friends. There were also no objections to Stan’s testamentary intention with the will. As such, the Court can cure and validate the will.
For the 2013 Will, although only the copy of the Will was available, the Court can accept it as the valid will. If the original copy of the will is lost or missing, there is a presumption that the will-maker intended to revoke the will, and Mabel and Dipper need to overcome that presumption.
The house fire was an accident and Stan repeatedly told his friends and family his intention to give his assets to Mabel and Dipper. The loss of the original copy of Stan’s will was an accident and was not an act of revocation. These factors showed the Court that although the original 2013 Will was destroyed in the fire, the copy of the will provided Stan’s last will and testament. Although the 2010 Will could be cured as a valid will, the 2013 Will revoked the 2010 Will.
As such, the 2013 Will was considered valid and Stan’s assets were to be provided to Mabel and Dipper.
IT’S THE LAW – By Daniel Shim
THE SCIENTIST RICK AND HIS GRANDKIDS
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – By Daniel Shim
THE SCIENTIST RICK AND HIS GRANDKIDS
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Grandpa Rick was a famous scientist who lived together with his granddaughter Summer and grandson Morty. They were a loving family and the grandkids supported Rick in his work. Rick repeatedly stated that all his estate will be theirs, and in 2010 he drafted a will that distributed all his estate to them.
However, in 2015, his physical and mental health started to deteriorate. He began to display obvious signs of confusion and forgetfulness. The grandkids took him to several doctors who diagnosed him with dementia and paranoia. Rick was becoming delusional and started to believe that he was a dimension-hopping scientist running away from a secret government agency. He believed that the doctors were agents trying to probe his mind. He struggled against his family and the doctors and refused to take medications.
After Rick’s diagnosis, there were few occasions where he dressed up in a green tight suit and yelled that he was a pickle. Believing that his friends and family were agents trying to capture him and steal his inventions, he harmlessly yet frustratingly harassed them periodically. The grandkids continued to take care of him despite these troubles.
In 2021, Rick and his friend Mr. Nimbus met with a notary public to draft a new will. The 2021 Will divided his estate between Mr. Nimbus and an organization named Unity. Rick explained that his family was trying to steal his inventions and money and he wanted to cut them off from the will. The notary public did not find anything wrong with Rick and the 2021 Will was executed.
Rick passed away in 2024. It was then that Summer and Morty learned about the 2021 Will. The family brought the 2021 Will to the Court to argue that Rick did not have a testamentary capacity at the time of the execution due to his insane delusions at the time.
What would you do if you were the Judge?
When a will-maker executes a will, there needs to be a proper mental capacity without any disorder in the mind that can poison the affections or sense of right. A delusion is one of such disorder. However, a delusion is more than just getting the facts wrong. A delusion is a persistent belief in a supposed state of facts that no rational person would hold to be true. A will-maker has a delusion when that delusion influences the way he drafts the will, in a way that he would not have made such provisions if the mind was sound.
As such, Summer and Rick need to show that Rick’s delusion affected the execution of the 2021 Will. If Rick had a sound mind, he would not have made such provisions in that Will.
During the hearing, the doctors testified to Rick’s dementia and paranoia. The doctors and other witnesses also testified to Rick’s behaviour due to his delusions. There was no proof that his family was trying to steal his invention and money. Instead, the evidence showed that they continued to support and love him even as he struggled with his mental health. The Court also emphasized that Rick did not have any association with the organization Unity, and his relationship with Mr. Nimbus was not a close one. All these factors persuaded the Court that Rick was suffering from insane delusion when he executed the 2021 Will.
Therefore, the Court accepted that the 2021 Will was invalid because Rick did not have testamentary capacity at the time of the execution.
Daniel Shim is an articled student in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By George Gunnink
SORRY, YOU GAVE IT AWAY!
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – By George Gunnink
SORRY, YOU GAVE IT AWAY!
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Senior Sam owned a mortgage-free house. He was mulling adding one of his two adult children, Sally, to title to the house. He shared this thought with Sally, who arranged a visit for Sam with Neil, a local Notary Public, to get some advice. Neil the Notary asked Sally to leave the room and had a discussion with Sam about his intentions. Sam confirmed his desire to do the transfer, but Neil was somewhat uncomfortable proceeding, knowing that Sally had been the one to make the appointment. So, Neil suggested that Sam take some additional time to think about it. Sam did so, and called back the next day to cancel the transaction. A week later, however, he called Neil back 4 times in one day, asking Neil to proceed with it. Sally also left a message, asking Neil to call her father back to confirm that Neil had received the instructions. Neil did so, and received emphatic instructions from Sam to proceed. The next day, Sam signed a transfer document, along with a document confirming that he was making a gift of the 50%, a declaration that he did not want Sally to hold the 50% for his benefit, and confirmation that he understood Neil’s advice about what he was doing (and that Neil would not process the transfer for another 6 days). 10 days after the transfer was filed, Sam had second thoughts and asked Neil to undo the transfer. Neil could not do so without Sally’s agreement to sign transfer papers, and Sally refused to do so. Sam was not happy and went to court for an order that Sally transfer title back to him.
What would you do if you were the Judge?
Sam argued at trial that Sally held the 50% on resulting trust for him, arguing that he did not fully understand the effect of what he did, and that Sally had unduly influenced him to make the transfer to her. Relying heavily on Neil’s evidence, the trial judge did not accept Sam’s attempt to reverse the transaction, and instead confirmed that Sam had made a gift that he could not get back. Sam was not happy with this outcome, and made fruitless appeals to the BC Court of Appeal, and even to the Supreme Court of Canada. As the Court of Appeal concluded: “the law does not give him a remedy for changing his mind.”
This case confirms the importance of understanding what you are doing when you add others to title to any of your assets, of getting good advice about the implications of doing so, and of documenting your intentions very clearly.
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By George Gunnink
RUTH’s BEST INTEREST OR BETTY’S BEST INTEREST?
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – By George Gunnink
RUTH’s BEST INTEREST OR BETTY’S BEST INTEREST?
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Betty loved her mother, Ruth. After her husband’s death, Ruth became quite fragile, suffering a fall and then beginning to have difficulty understanding things. She soon became unable to live on her own, and Betty and her husband Bill decided to help Ruth out. Rather than put Ruth into a care home, they offered to have her live with them. They did not, however, have a suitable home for this arrangement and devised a plan that included using Ruth’s power of attorney to Betty to transfer Ruth’s home to Betty’s name, and then financing Ruth’s home to allow Betty and Bill to buy another home in only their names. Betty then sold Ruth’s old home, pocketing the money left over after paying off the financing. The three of them moved into the new home, where Ruth was well cared for by Betty and Bill for 10 months before she died. Ruth’s Will left her estate to both Betty and her sister, Sally. Sally felt that she was entitled to share in the value of Betty and Bill’s new home and brought the matter to the courts when Betty and Bill refused to recognize her concerns.
What would you do if you were the Judge?
The judge decided that Betty breached her fiduciary duty to Ruth by using the power of attorney to complete the transactions that she did. Betty was not acting selflessly and in Ruth’s best interests, and she really should have known that this was an abuse of the trust placed in her by Ruth. Ruth was also not in any condition to understand or consent to the use of the power of attorney to put Betty’s plan in place. The judge therefore decided that the whole of the new home was part of Ruth’s estate, so that Sally would indeed receive her fair share of its value. Betty and Bill’s arguments that their portion should be larger because of the care they provided to Ruth during her lifetime were also rejected, as the care that they provided was the type commonly provided by adult children to their aging parent out of love, rather than with an expectation of being paid.
It is becoming more common for us to hear complaints about abuses of powers of attorney. In many cases, these abuses are the result of failing to understand the role of a person appointed as an attorney. So, we strongly recommend and encourage anyone appointed to such a role to obtain legal advice on their duties, so that they do not run afoul of the law.
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Daniel Shim
Abe’s Will
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – By Daniel Shim
Abe’s Will
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Abe Simpson died in his sleep at the age of 83 on November 22, 2023, in the care home Springfield Retirement Castle. At the time of his death, he and his wife, Mona Simpson, were separated for 27 years. Abe had two children, Homer and Powell. Abe also had a best friend in the care home, Jasper Beardsley.
Abe died with a will dated May 12, 1992, which named Mona as executor and sole beneficiary of his estate.
However, the nurses found a testamentary document dated May 9, 2022, on the desk in Abe’s room, among self help guidebooks on how to make one’s own will. The document was handwritten and stated, “This is my last will and testament, where I name my best friend, Jasper Beardsley, as the executor, and I divide my estate equally among Jasper and my children, Homer and Powell.” The document had Abe’s signature, but there were no witness signatures.
Abe had talked often about his intention to leave his assets to the three people listed in the 2022 Will. He told the beneficiaries, the nurses, and other seniors in the care home.
He explained that because he has been separated from his wife, both he and Mona agreed that they will not write each other’s names in their wills. He also told everyone that he intended to have Jasper as the executor and one of the beneficiaries because of the close friendships they’ve had together in the care home.
Although Abe wrote the document as a will, it lacked the witness signatures, and as such, is not a valid will. If this document is not accepted, then, through the 1992 Will, all of Abe’s assets will be given to Mona.
Knowing Abe’s wishes and wanting his intentions to be fulfilled, Jasper brought the 2022 Will to the Court to see if the Court will accept the deficient document as a valid will.
What would you do if you were the Judge?
A proper will requires the signature of the will-maker made in presence of 2 or more witnesses, and theirs in the presence of the will-maker as well. Without these signatures, the document is considered deficient and not valid.
However, on March 31, 2014, a new law was introduced that allowed the court to “cure” the deficient will and accept it as the will-maker’s testamentary wishes.
In order for the deficient will to be cured, the court requires a very fact-based analysis.
In terms of Abe’s 2022 Will, the Court cured and accepted it as a valid will due to the following reasons: The Will has his signature, the date, and his clear statement that it is his testamentary will. Abe told others, including those who are not beneficiaries, about his intentions. No one opposed the 2022 Will. The nurses, who are not beneficiaries of the Will, found the document in Abe’s room. The document was found among the self-help guidebooks on how to write ones will, showing his intention to draft his testamentary will. All of these were factors that persuaded the Court on Abe’s testamentary wishes.
Therefore, although Abe’s 2022 Will did not have witness signatures, the Court accepted it as Abe’s testamentary will.
Daniel Shim is an articled student in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Daniel Shim
The Estate Trouble in the Gotham Family
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – By Daniel Shim
The Estate Trouble in the Gotham Family
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Richard and his two kids, Jason and Tim, worked as acrobats in a well-renowned circus, Haly’s Circus. Richard was the only child of Bruce Gotham from Bruce’s first marriage. Bruce was a wealthy businessman and supported Richard and his sons. Bruce and Richard were in a good relationship.
While Bruce was on a business trip in a country across the ocean, he met a wealthy businesswoman named Talia. The two fell in love and married right away. Richard was surprised to hear this news but supported Bruce. Richard and Talia were on amicable but distant terms.
Shortly after the marriage, in a series of unfortunate events outside of anyone’s control, Haly’s Circus went bankrupt, and Richard and his two sons were suddenly in poverty. Even worse, Bruce lost a majority of his wealth due to a country-wide financial crisis. Talia’s business, however, was not affected.
Despite the financial difficulties, Richard and Bruce were still maintaining a healthy relationship and made plans to support one another. Unfortunately, Bruce suddenly died of heart attack.
Bruce’s will left all of his estate to Talia. The will also stated that Talia should provide portions of his estate to Richard as she saw necessary. The will was made before Richard and Bruce lost their wealth, and Bruce did not expect Richard to need a significant financial support from him.
Bruce’s estate was also very modest, to the point that if all of his estate was provided for Richard, it would only lift Richard and his sons out of poverty for a limited time.
Richard was devastated by Bruce’s passing. He was also overwhelmed by the financial needs. Talia sympathized with Richard. However, she believed that she deserved more than half of the estate. She was the surviving spouse and spouses are more entitled to the estate than the child.
Richard decided to go to the Court to vary the will as he felt that it was unfair.
What would you do if you were the Judge?
The Court varied the will so that he received all of Bruce’s estate.
The Court stated that Richard and his sons, Jason and Tim, had a significant financial need that outweighed Talia’s needs. Talia had limited legal and moral entitlement to the estate, as Bruce and her relationship was a short one, and she did not depend on him financially; her business was doing well, and she was not affected by the countrywide financial crisis.
Furthermore, the size of Bruce’s estate at his death was so modest that it could not be divided. Even getting the whole estate, it would only be enough for Richard and his sons to be out of poverty for a limited time.
Lastly, Bruce’s will stated that he wished to support Richard if needed, as it stated that Talia should provide for Richard as she deemed necessary. Therefore, the Court found that the variation of the will did not offend Bruce’s intentions in the will, and that the variation was adequate, just, and equitable.
IT’S THE LAW – By George Gunnink
Never Gift a Witness!
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Daniel Shim is an articled student in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By George Gunnink
Never Gift a Witness!
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Dave lived with his parents, along with his two daughters (though they may not have been biological nor adopted, he had been granted sole guardianship over them). He had no spouse. Dave had a close relationship with his folks, as they gave him considerable support when he ran into personal issues and gave him assistance paying off some burdensome debt. Dave was vocal about his feelings for his parents and told them that he wanted them to have his estate if he died. He then drafted a document that did exactly that, sat down with them, and signed it in their presence (along with a friend of the family’s). He also named them as beneficiaries of his life insurance policy and pension plans. Dave died. That’s when his parents learned about section 43 of the Wills Estates and Succession Act. To their chagrin, they discovered that s. 43 says that unless a court declares otherwise, gifts made to witnesses (or to a witness’s spouse) of a will are void! They were not too pleased with this outcome and decided to make an application to the court for an order that declared otherwise.
Husband Henry had a child from a previous marriage and wanted this child to eventually receive an inheritance. To ensure this, he put the house in his name only. However, Husband Henry did not want Wife Wendy to be kicked out of the house they shared after he died, so he left Wife Wendy a life estate in his will. The life estate said that Wife Wendy could live in the house for the rest of her life, but did not set out any other terms.
What would you do if you were the Judge?
The Judge noted that the standard to meet under a s.43 application is whether the Will reflected Dave’s intentions despite the fact that his parents were witnesses. The Judge gave particular weight to the evidence that Dave and his parents had a very close relationship, that Dave had made very clear that he wanted them to have his estate, and that the rest of his estate plan (naming them as beneficiaries) was also consistent with the Will’s provision for them. Notably, the Judge declined to give any consideration for who would receive the estate if the gifts were void. In the eyes of the law on this matter, that was irrelevant. What was relevant was Dave’s intent. The gifts to Dave’s parents were upheld in the end…. but only after considerable legal expense and process to achieve this result.
George Gunnick is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – BY CASSANDRA DOUMA
OVER THEIR DEAD BODY???
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – BY JASON SANGHA, GUEST WRITER
OVER THEIR DEAD BODY???
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
When Husband Henry and Wife Wendy tied the knot, they were both on their second marriage. Husband Henry bought a new house for the two of them to share. They also ran a Bed & Breakfast in the new house which brought in a modest amount of income.
Husband Henry had a child from a previous marriage and wanted this child to eventually receive an inheritance. To ensure this, he put the house in his name only. However, Husband Henry did not want Wife Wendy to be kicked out of the house they shared after he died, so he left Wife Wendy a life estate in his will. The life estate said that Wife Wendy could live in the house for the rest of her life, but did not set out any other terms.
Husband Henry subsequently passed away and Wife Wendy remained living on the property. Greedy Gary, Husband Henry’s only child, executor, and sole beneficiary, planned on buying himself a yacht when he received the proceeds from selling his father’s property. After Greedy Gary transferred the title of the house to his name pursuant to the will, he tried to pressure Wife Wendy to sell the house. Wife Wendy wasn’t sure if she wanted to sell the house and wouldn’t give Greedy Gary a firm answer. Greedy Gary became impatient and applied to the Court to have the property sold. He also asked the Court to order that Wife Wendy reimburse him for various expenses he had paid, and to hand over any profits the B&B had made since Husband Henry passed away. Wife Wendy opposed Greedy Gary’s application, arguing that she was entitled to stay at the house as long as she wanted, she was not responsible for the expenses, and she was entitled to keep the B&B profits.
How would you decide if you were the Judge?
A life estate entitles its beneficiary to sole possession of the land for his or her lifetime. Once Wife Wendy dies, Greedy Gary will be entitled to the entirety of the property, but not until then. Because Greedy Gary only received the property because of his father’s will, he is bound by any restrictions stipulated in it. Here, that is Wife Wendy’s life estate and Greedy Gary received his ownership of the property subject to it.
If the instrument that creates the life estate does not set out detailed terms, common law terms apply. The life tenant is entitled to all benefits of the property during the term of the life estate, so Wife Wendy is correct in that Greedy Gary cannot force her to leave the property or sell it, and she is entitled to keep any profits the property generated since Husband Henry passed away.
Whether Greedy Gary is entitled to be reimbursed for expenses depends on what those expenses were. Under common law, Wife Wendy is responsible to pay any recurring expenses such as maintenance, utilities, insurance, and property taxes. Any capital expenses which contribute to the value of the property itself, are the responsibility of the registered owners (for example, repairs to the structure).
If Wife Wendy did want to leave the house and allow Greedy Gary to sell it, she could ask the Court to calculate the value of her life estate and she would be entitled to be ‘bought out’ for that amount. In making this calculation, the court would start by looking at Wife Wendy’s age and the present fair market value of the property.
Cassandra Douma is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, personal injury claims, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – BY JASON SANGHA, GUEST WRITER
Executors at an Impasse!
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgement!
IT’S THE LAW – BY JASON SANGHA, GUEST WRITER
Executors at an Impasse!
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgement!
Walter passed away in 2015. He left a will naming all three of his adult children, Sarah, Daniel and Kim, as executors equally responsible for administering his estate after he passed. The three children were also the three equal beneficiaries named in the will.
In 2017, the children’s relationship with each other completely broke down. Sarah, Daniel and Kim had an argument about what to do with an asset of Walter’s estate – his house. Sarah no longer spoke with Daniel or with Kim, but Daniel and Kim remained close with one another. Sarah felt that the house should be sold as the market was “hot” and that all the liabilities of the estate should be concluded and finalized from the proceeds of the sale. Sarah also accused Daniel of continuing to live in the house so that the house could not be sold because Daniel wanted to buy the house himself at a lower price when the market cooled down. Daniel and Kim argued that Daniel had only been living in the house in order to maintain the house in good condition. Daniel said that he had wanted to buy the house for himself since their father’s passing, but it had not happened yet because Sarah had been so uncooperative. The fate of the house remained uncertain.
Sarah filed an application to the court asking that the court decide the best way to sell the house, including an option for Daniel to purchase the house at an appraised value and retain a qualified accountant to address any final estate tax implications. Daniel and Kim filed a responding application asking that Sarah be removed as an executor, arguing that she was the impediment to matters progressing. Daniel and Kim argued that Sarah’s proposal for selling the house was not appropriate as it was uneconomical because it required hiring more professionals. In their view, the expenses were not in the best interests of the estate.
What would you do if you were the Judge?
The Judge agreed with Sarah. A court can remove an executor in order to resolve a deadlock among executors, even if there is no wrongdoing by any of the executors, but it can also choose to intervene in the administration of an estate to resolve a deadlock among executors. The court decided that the executors were not capable of carrying out the remainder of the administration on their own, as communication and cooperation among them had broken down. The Judge decided that it would not be appropriate to remove Sarah as an executor as it would likely lead to further conflict and time-consuming litigation if Sarah as a beneficiary did not agree with how the estate was administered. The court ordered that the house be sold on stipulated terms including requirements that the executors retain an appraisal firm and that Daniel have the option to buy the house at the appraised value if he chooses.
This case demonstrates the difficulties that can arise when a will name more than one person as an executor. The law requires executors to act unanimously, not by a majority unless the will says so when administering an estate. Choose carefully and bear in mind the potential pitfalls of naming multiple executors to act together.
Jason spent some time articling in Cloverdale with MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – BY COREY J. BOW
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgement!
THE ADEQUATE, JUST AND EQUITABLE WILL
A couple from India immigrated to Canada and managed to build a wealthy farm. They had 4 daughters and 2 sons. As the children grew up, they were expected to work on the farm and contribute to the business. Not only did the daughters have to work on the farm, but they also had to do the family chores inside the family home. One daughter, who worked outside the family business, was expected to make her employment income available to the family business. As the family all worked together in the family business, they became wealthy and eventually owned a house in Vancouver and a 73-acre farm in Richmond.
When the couple passed away, the daughters discovered that they had been treated rather unfairly in their parents’ wills. The estate was worth approximately $9 million, but under the wills, the daughters only received an inheritance of $150,000 each, while the sons received $4.2 million each.
Despite intense cultural pressure, the daughters started court action, saying the will should be varied to make it fair for all the adult children.
What Would You Do If You Were the Judge?
The court varied the will and awarded the daughters $1.35 million each, with the sons still receiving more at $1.8 million each. In BC, the will maker’s views are paramount, however, a will can be varied if the will-maker did not make it adequate, just, and equitable to the will maker’s spouse or children. In this case, it went against public policy to discriminate against women on the basis of sex, even though it may be a long-standing cultural tradition from India. The court could not let that will stand as it offended basic Canadian values. Similarly, if a will-maker disinherited a homosexual child on those grounds, the will would likely be varied.
If you feel like you have been written out of a will for no good reason, you should consult a lawyer as there may be a remedy for you as there was in this case.
Corey J. Bow is a lawyer who practises in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – BY GEORGE GUNNINK
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
THE PRINCIPLE OF TESTAMENTARY AUTONOMY
Father Farley left a will dividing his considerable estate ½ to his son Industrious Ian, and ½ divided equally among his daughter Hard Luck Helen and her two children. Farley was not survived by his wife. Farley and his wife had given his two children similar opportunities in life – they had the means to help the kids get into real estate, gave them financial assistance when life was tough for them, and generally tried to treat them similarly. Unfortunately, Helen did not have an easy life. Her real estate investments failed due to poor timing of the market, and she became somewhat unstable following her separation, to the point where she started to have (in her parents’ view) an alcohol problem. At the time of Farley’s death, she was living on a disability pension and had very little to her name in the way of assets. Helen had a reasonable relationship with her parents and had never treated them badly. Ian too was living on a modest pension at the time of Farley’s death, as he had suffered a serious brain injury and further accident. However, he had a very healthy asset base – he had worked with Farley in the family business, helping his father build value in the business. Ian had a much more stable life, and also had the benefit of his wife’s income and support.
Helen was not pleased with Farley’s will and asked a court to vary it, to give her more. She was successful in this venture, with the judge finding that Farley had failed in his moral duty to his daughter. She was awarded ½ of the estate, with Ian’s share reduced to 1/3 and her children’s shares reduced to 1/12 each. Ian was not too pleased with this and asked the Court of Appeal to reconsider the judge’s decision. He did not think it fair that his Father’s wishes and intentions should be discounted to the extent they were.
What Would You Do If You Were the Judge?
The Court of Appeal agreed with the trial court that Farley had not done for Helen what a judicious parent would do for a child in her circumstances. However, the judges were uncomfortable with the ½ given to her by the trial judge as they felt that not enough consideration was given to the nature of Ian’s relationship with his parents, his contribution to their estate, and the size of Farley’s estate. They reasoned that if there is plenty to make adequate provision for Helen while at the same time recognizing Farley’s desire to give Ian a sizeable share of the estate, they should more closely follow the will. And that’s what they decided: to leave the grandkids each the 1/12 ordered at trial, and 5/12 to each of Ian and Helen.
This case demonstrates the ongoing tension that courts are asked to resolve between parents unfairly disinheriting their children while recognizing the principle of testamentary autonomy (a will maker should be able to do what they wish with their estate).
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – BY COREY J. BOW
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
REMAINS OF THE DEAD
The Greek father of two children, Christophoros, made a will in 1978. In that will, he named his son and daughter to be executors of his estate and gave his entire estate to them as beneficiaries. In the 10 years before his death in 2010, he became estranged from his children and in April 2007, he made a new will that appointed his niece, Linda, as executrix of his estate. In that new will, he gave his entire estate to Linda’s son and completely disinherited his children. Chris’s adult children contested the will on the grounds of incapacity or undue influence.
Another issue arose about what to do with his remains. Linda wanted his remains to be cremated and taken to Greece. Chris’s children, however, wanted their father to be buried according to the Greek Orthodox religion in Vancouver. They argued that since they and Chris’s second wife all supported a religious funeral, they should get that. On the other hand, Linda argued that at the time of his death, Chris was an atheist. The deceased had also written in a Representation Agreement that he wanted his executrix to decide all the issues related to funeral arrangements. The parties went to court to resolve their dispute.
What Would You Do If You Were the Judge?
There is a B.C. Act called the Cremation Interment and Funeral Services Act sets out the priority of persons allowed to dispose of the remains of the deceased person. The priority is given to the executrix. The next priority is the spouse and adult children of the deceased. The Act also sets out several considerations, including the feelings of those related to the deceased, the rules, practice and beliefs for disposition of human remains held by the deceased, any reasonable directions given by the deceased, and whether the dispute involves family hostility and capricious change of mind. Based on all the evidence and the considerations above, the court held that the family’s preference for a religious funeral in Vancouver should prevail. The court noted that this dispute could have been resolved had the deceased made a specific reference in his will about whether or not he wished to have a religious funeral. Had he made that notation, that preference would have overridden the other considerations.
It is recommended that you set out your strong preferences for the disposition of your remains in your will to avoid your family having similar litigation after you pass away.
Corey J. Bow is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By George Gunnink
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Nothing Can Be Said To Be Certain, Except Death and Taxes
Planner Polly did not want her estate to have to pay probate fees (tax) when she passed away. So, she did what many do to avoid these fees: she added her son, Oblivious Ollie, as a joint tenant on title to her home. At the same time, Polly did a new will, which included a statement confirming that she intended to add Ollie as an owner of her assets with the intention that those assets would belong to him upon her death. Ollie had no clue any of this was going on. A couple of years later, Ollie and his business were sued. Realizing that he was going to lose that fight, he consented to judgment in favor of CorpGiant. He first discovered that he was on title to Polly’s home when CorpGiant registered that judgment against Ollie’s interest in the home. Polly was dismayed, and very quickly changed her Will to say that she had decided to leave Ollie out of her Will as he had too many personal debts. Polly also applied to the courts to ask them to rule that she had not intended to give Ollie a beneficial interest in her home, and that therefore CorpGiant should have no judgment against it. CorpGiant objected, based on the Land Title Act, which allows persons searching the Land Title Registry to rely on the Registry to determine ownership of land. Ollie did not respond to Polly’s application.
If You Were The Judge, How Would You Decide?
The court ruled against Polly and found that she had intended to gift the ½ interest in her home to Ollie. The case law around these transfers required the court to prefer the evidence at the time that the transfer was made, rather than Polly’s subsequent statement of intention. The judge also found that Polly’s gift to Ollie had been fully delivered to his possession, and that he had not refused the gift when he learned that it had been made to him. CorpGiant’s judgment against title also remained, consistent with upholding the certainty and reliability of our title registration system here in British Columbia.
This case is a good warning of the potential folly of adding someone to your assets to avoid paying tax. Clearly, these transfers should only be made in limited circumstances, and only after considering all the implications of doing so.
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By George Gunnink
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
A Foster Family Forever
Foster Farley was a much-loved member of his foster family. To the end of his life on this earth, he was surrounded by and cared for by his foster siblings, with whom he had grown up since the age of 3. Farley was always treated as a full child by his foster parents, and even shared equally with his foster siblings in his foster mother’s estate when she passed. He knew nothing of his birth family, and at his date of death, his closest blood relatives were a birth aunt and niece in Switzerland, with whom he had no relationship. Farley died without a will, so his estate was destined for the Swiss relatives. However, Greg, one of Farley’s foster siblings, cracked Farley’s computer’s security after he passed and found a WORD doc. containing the following: “Get a will made out at some point. A 5 – way split for remaining brothers and sisters. Greg, Annette or Trevor as executor.” The electronic evidence showed that this document had been accessed earlier in the day of Farley’s passing and that Farley had been housebound (with the computer) in the weeks leading up to his death. Greg asked the court to “cure” this one-liner and consider it a will. He provided notice to the Swiss family members that he was doing so, but they chose not to respond.
If You Were the Judge, How Would You Decide?
The Wills, Estates and Succession Act permits the court to do this kind of thing, and the standard to do so is set out in the case law: the proposed will had to be an authentic document created by Farley, and it had to contain Farley’s full, final and fixed intentions. With the facts before it, the court did not have much trouble deciding both of these tests in favour of Greg. So, it held that the document was Farley’s will and that the estate was to be divided equally among his foster siblings.
While this case is informative and shows that the court will (in certain cases) correct what otherwise doesn’t meet the standards for a valid will, you are well-advised to prepare a proper will during your lifetime. Any variation of the facts or a litigious opposing family member could very well have resulted in a different conclusion. Additionally, Farley could have saved his foster family the significant legal expense of taking the matter to the courts!
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By George Gunnink
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Continuing Affection
Alex and Ashley had a 30-year spousal relationship before they separated. It seems, however, that Ashley was not done with Alex. After their separation, she chose not to change her existing will, which left everything to Alex. She met with her lawyer over a number of months following the separation, to prepare a separation agreement and discuss her estate plan. Ashley’s friend suggested that she change her will, but she specifically stated to her lawyer that she did not want to do so and that she wanted Alex to receive her estate. In fact, she changed her power of attorney and representation agreement but chose to leave her will as it was. Before the separation agreement was complete, Ashley became mentally incompetent to give instructions to finalize it. Her power of attorney stepped in to assist with the final revisions and asked that a clause disentitling Alex to Ashley’s estate be amended, as Ashley had always told her that Alex should receive her estate. At some point, after the agreement was finalized, Ashley passed away. The executor of her will was left somewhat conflicted, as the Wills, Estates and Succession Act automatically revokes a gift made by a will to the spouse of a will-maker when they cease to be spouses if the will was made while they were spouses. As it turns out, Ashley was not aware of this law.
If You Were the Judge, How Would You Decide?
Thankfully for Alex, all was not lost. There is a further provision in the Act that allows a court to make an order that any “record” can be considered a will if the court is satisfied that the “record” contains the testamentary intentions of the deceased person. Based on the evidence before the Judge, Ashley’s old will was such a record, and it was recognized as her valid will.
This case turned out well for Alex, but only because the evidence supported Alex’s position. However, the expense of bringing this matter to the courts could have been avoided altogether by a new will done by Ashley after the separation.
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Tyler B. Dennis
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
The Preferred Roman Choice for Care
Julius Caesar returned to Delta, BC in 2019, after living abroad in Italy for nearly 50 years. His return had been facilitated by his nephew, Octavian after his uncle began to suffer the worsening onset of dementia. Prior to his return, Octavian had assisted his uncle by managing Julius’ finances and his medical care in Italy. Julius executed a Power of Attorney in 2015, naming Octavian as attorney.
Upon his return to Canada, Octavian found out that Julius had had an alleged common-law spouse in Italy, Cleopatra, who claimed to have been with him since 2017. Octavian was at this time moving his uncle into a full-time care facility as his dementia had worsened. This resulted in a conflict with Cleopatra who believed she should oversee his care. The dispute also centred around the management of Julius’ finances (which was comprised of a bank account with a balance of $400,000.00). In early 2019, Julius was declared mentally incapable of managing his affairs by his doctors, but not before making it clear he wanted Cleopatra as part of his life and revoking the Power of Attorney.
With no authority to manage his affairs (and no Power of Attorney in effect), Octavian and Cleopatra applied to the BC Supreme Court for the appointment of a Committee of Person and Estate for Julius, each claiming they should be appointed.
If You Were the Judge, How Would You Decide?
The Judge ruled that when deciding as to the appointment of a Committee of Person and Estate, the Court must look at each case individually and especially take into consideration the adult’s autonomy, personal dignity, expressed wishes they made while capable, and how the adult chose to live their life. These considerations must be weighed against the reasonableness in making the appointment of the person who is applying to the Court. Factors such as the person’s relationship to the adult, their relationship with the adult’s family if not related, whether the person is qualified to deal with financial and medical decisions, and if conflict exists between the person and the adult’s immediate family, all must be taken into consideration.
The Judge decided that the actions of Julius before losing mental capacity, including starting the relationship with Cleopatra, revoking the Power of Attorney given to Octavian, and his public request that Cleopatra be part of his life, were strong considerations. In addition, the Judge agreed Octavian’s strong disapproval of Cleopatra and refusal to recognize her as Julius’ spouse indicate conflict would result and the potential existed for Cleopatra to be shut out of Julius’ life.
The Judge decided to appoint Cleopatra as Committee of the Person and Estate for Julius but with conditions, specifically that Cleopatra was required to update Octavian regularly on Julius’ medical needs and treatments, that regular contact be kept between Julius and Octavian, and that Cleopatra report to the Public Guardian and Trustee yearly.
In hindsight, had Octavian (also known as Augustus) been appointed to protect the interests of the original Julius Caesar, the history of the Roman Empire may have been a different story.
Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Stuart D. Robertson
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Till Death Do Us Part
Don and Debra lived together in unwedded bliss for almost ten years. When they started to live together, neither of them had much money, but they were able to purchase a home of their own with basically no money down. The property and mortgage had to be put into Don’s name only as Debra had some credit problems. They both took a lot of pride in their home and over the course of their ten year relationship, they both put a lot of hard work and money into the property, including renovating and making regular lump sum mortgage payments. After about ten years, the home had tripled in value from when they had initially purchased it and the mortgage was paid off in full.
Unfortunately, Don and Debra had a difference of opinion on whether to turn the spare room into an art studio or a man cave. The two of them had been growing apart as of late and this was the tipping point for Debra so she left the home. She made it clear to Don and her friends that she no longer wished to be with Don and that their relationship was over.
After two months apart, Don passed away suddenly in his man cave. Don had changed his will after he and Debra separated such that he wanted to leave the house to his daughter from a previous relationship. This daughter, Diane, also acted as the executor of his estate.
Diane and Debra did not get along. Debra approached Diane after learning of Don’s passing inquiring about the house. Diane said the house was going to be hers now based on the Will and there was nothing Debra could do about it.
If You Were the Judge, How Would You Decide?
As Debra and Don separated before Don’s death, Debra is not able to challenge Don’s Will under the Wills, Estates and Succession Act. However, because Debra is considered a spouse under the Family Law Act (“FLA”), she can sue Don’s estate seeking her share of the property. Under the FLA, Debra is entitled to a share of family property as of the date of separation, which includes the home they purchased while together. Debra could sue the estate and should obtain an order entitling her to the value of one half of their property from Don’s estate. Despite their separation and Don’s death, Debra can still get her fair share.
The passing of a spouse after separation creates some interesting legal issues and limitations. If you have a situation similar to the one above, we recommend you seek the advice of a lawyer, as these sorts of scenarios can be complex. It is important that you understand your rights.
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By George Gunnink
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Executor Beware!
Claire left a will that she did not update after she separated from her husband. Upon her death, litigation ensued to try to sort out who should take on the executor’s duties and who should receive her estate. Rather than have a judge decide the matter, a settlement agreement was reached, where Claire’s late husband’s niece, Administrator Annie, would take on the executor’s duties (as an administrator) and the estate would be split 55% to her, and 45% to Claire’s nieces and nephews.
Annie did her best with the estate. She knew she had to make sure the estate’s debts were paid but wanted to pay her and the beneficiaries’ shares out of the estate before she was certain that this was done. This is quite common and is usually done by holding back part of the estate money. Annie realized that the estate owed income taxes, received an estimate of what the taxes would be, and kept $25,000 in the estate accounts to satisfy the debt. Unfortunately, the taxes were mis-calculated, and Annie was about $20,000 short of estate money to pay them. Annie didn’t think it was fair that she should have to pay all of this debt herself and asked the beneficiaries to return part of their money to help her pay it, as well as other estate expenses that she had incurred. They refused. So, she asked the court to step in and order them to do so.
What would you do if you were the Judge?
The judge dismissed Annie’s claim. The Income Tax Act places the responsibility for an estate’s taxes solely on the executor/administrator of an estate. The court pointed out that Annie had many opportunities to protect herself from this kind of scenario: in the settlement agreement with Claire’s family, she could have added language making them responsible along with her (up to their % of the estate); she could have held back more funds than she did; and at the time that she paid out the estate to them, she could have required that they agree to shoulder part of the tax debt if it turned out the holdback wasn’t enough. She did not do so, so she would be solely responsible to pay the estate’s outstanding income tax and expenses.
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
It’s The Law – By George Gunnink
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
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Whose House Is It, Anyway?
Jack and Jill were partners in a real estate venture. Many years ago, they purchased a property together, with each of them contributing one-half of the purchase price and closing costs. They found a renter for the property and opened a bank account together, where all the rent was deposited, and expenses were paid from. They each reported 50% of the income and expenses for the property on their tax returns. Jack died before Jill and left a will that left his whole estate to his children. Prior to his passing, he spoke with his kids about the property and their options for it – keep it as continuing partners, sell it out to Jill, or agree with Jill that it be sold. If only it was that simple. Jill had different ideas for the property and bank accounts. Her position was that the property and accounts were registered in both her and Jack’s names as joint tenants with the right of survivorship, conveying that both her and Jack’s intention was that if either of them passed, the other would get the property and account proceeds. She alleged that there was an oral agreement between them that supported this position.
What Would You Do If You Were the Judge?
A Supreme Court judge sided with the executor of Jack’s will and concluded that Jill had not rebutted the presumption against the right of survivorship with respect to the jointly held assets. That is, where there are assets held jointly between people who are in a partnership, and there is no agreement otherwise, the Partnership Act stipulates that they each have an equal interest in the assets. That equal interest continues after the death of a partner, according to the Judge’s decision. It is up to the survivor to prove that the intention was otherwise. The judge did not feel that Jill gave any compelling evidence to rebut the presumption.
Jill was not happy with this result and appealed the decision to the BC Court of Appeal. That court decided not to intervene with the lower court judge’s decision.
This case illustrates the importance of making intentions very clear when assets are held jointly between two or more persons. Generally speaking, unless the owners are spouses, the presumption is that there is no automatic right of survivorship, regardless of what the documents at a financial institution or a government registry system say. Therefore, when clients are entering into these kinds of arrangements (and other estate planning), our advice to clients is to enter into agreements that make very clear what their intentions are. A clear agreement can help to avoid a lot of unnecessary expenses!
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters, and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Tyler B. Dennis
Off with the Executor’s Head?
What would you do if you were the Judge? Judges decide the facts based on evidence and then apply the law. Here is a fact pattern. How would you determine who was at fault? Fact patterns similar to this are often presented in court and assessed by Judges. Test your judgment!
IT’S THE LAW – By Tyler B. Dennis
Off with the Executor’s Head?
What would you do if you were the Judge? Judges decide the facts based on evidence and then apply the law. Here is a fact pattern. How would you determine who was at fault? Fact patterns similar to this are often presented in court and assessed by Judges. Test your judgment!
Louis XV lived in Cloverdale, BC and was the father of 10 children. He owned a single-family home he called Versailles in Cloverdale and a condo in White Rock (the condo having a mortgage). He also had a retirement income fund (RIF) and a tax-free savings account (TFSA) with a combined value of $150,000 held with the Bank of Montreal. Louis XV’s son, Louis XVI and his wife, Marie Antionette, lived in the White Rock condo since 2011, and were appointed as Louis XV’s power of attorney in or around 2010.
In or around 2015, Louis XV suffered a stroke and was forced to move into a long-term care facility. Louis XVI continued to manage his affairs as his power of attorney and rented out the Cloverdale Property. In or around 2021, Louis XV died. In his last will and testament, Louis XV named Louis XVI as his executor and trustee and entrusted him with handling his estate. Louis XV’s Will divided his estate equally among his 10 children.
Louis XVI made little effort to move ahead with the administration of Louis XV’s estate after his death. He took no steps to obtain a grant of probate to sell the properties or even deal with the ongoing expenses the estate continued to incur (hydro, gas, property taxes and strata fees). Bills and expenses grew and the mortgage remained delinquent, resulting in the bank taking action against White Rock Condo. Many of Louis XVI’s siblings, as beneficiaries, pushed him to move the estate administration along, but he ignored or did not communicate with them. Friction and dissension between most of the beneficiaries and Louis XVI developed. In one instance, a beneficiary asked for an accounting of the estate’s assets and was told by Louis XVI’s wife Marie Antoinette to go “eat cake”.
Eventually, a majority of the beneficiaries brought forward an application to the BC Supreme Court to remove Louis XVI as executor of Louis XV’s estate and substitute him with another beneficiary, namely Louis XVIII.
What would you do if you were the Judge?
The court has recognized that exercising its jurisdiction to remove an executor appointed in a deceased’s last will and testament is a delicate matter, and such power must not be used lightly. The BC courts have also noted that hostility between the executor and beneficiaries is not grounds to remove an executor. In addition, a delay in administering a deceased’s estate, or even providing a timely accounting, is not grounds to remove an executor. Still, each case is based on its particular circumstances.
The courts have ruled that the grounds for removing an executor are that the conduct of the executor has endangered trust property, they have shown a want of honesty or a property capacity to execute the duties, or a want of reasonable fidelity. The utmost concern of the Courts is the “welfare of the beneficiaries”, meaning the collective welfare.
The Judge determined the welfare of the beneficiaries was being affected, as was trust property which had accumulated debt and, in the case of the condo, risked being foreclosed by the bank. The court removed Louis XVI and appointed Louis XVIII in substitution.
Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers can answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters, real estate, and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.