Month: November 2020

What I’m Reading: Interesting Estate Litigation Articles for November 2020

November 30, 2020

The following is a roundup of noteworthy articles published this month on estate litigation and related issues:

1. Trevor Todd at disinherited.com observes that one of the top reasons for disinheritance of a child is alleged estrangement, and he considers various B.C. cases on this issue: https://disinherited.com/uncategorized/wills-variation-overcoming-estrangement/

2. Janis Ko at Onyx Law provides a case comment which also deals with the issue of alleged estrangement of a child leading to disinheritance: https://onyxlaw.ca/spite-not-a-valid-and-rational-reason-to-disinherit-a-child/

3. The court will sometimes uphold the disinheritance of an estranged child, as Janis Ko at Onyx Law observes in a case comment found here: https://onyxlaw.ca/bc-court-finds-father-had-good-reason-to-disinherit-two-sons/

4. Stan Rule provides a useful and detailed discussion of some of the issues to be considered when granting a power of attorney: http://rulelaw.blogspot.com/2020/11/powers-of-attorney-consider-allowing.html

5. In advance of U.S election, Paul Trudelle at Hull & Hull LLP (in Ontario) considered the issue of whether an attorney under a power of attorney can vote on behalf of the grantor: https://hullandhull.com/2020/11/voting-and-powers-of-attorney/

6. Polly Storey at Clark Wilson provides a detailed update on medical assistance in dying (“MAID”) in Canada: https://www.cwilson.com/medical-assistance-in-dying-a-step-forward-in-ottawa/

7. Finally, Suzana Popovic-Montag and Tori Joseph at Hull & Hull LLP (Ontario) also provide an update on MAID, and go on to discuss the difficulty of accessing these services during the Covid-19 pandemic: https://hullandhull.com/2020/11/maid-accessibility/

Happy Reading!

Case Update: Removal of Reproductive Material from a Deceased Person

November 25, 2020

I previously discussed a case in which the petitioner wife applied for an order that her deceased husband’s sperm be removed from his body to be used for reproductive purposes by his wife. The application was dismissed.  The wife was not entitled to receive her deceased husband’s sperm for reproductive purposes because he had not provided his written consent during his lifetime. The post can be found here.

The petitioner appealed the decision and the B.C. Court of Appeal recently released their reasons for judgment dismissing the appeal at L.T. v. D.T. Estate 2020 BCCA 328. The Court of Appeal accepted that the deceased husband would have consented to the use of his reproductive material after his death if he had considered the issue during his lifetime. However, he did not provide this consent during his lifetime, and the prohibition on the removal of a person’s reproductive material without consent is criminal in nature. The legislation is clear: without the deceased person’s consent, the reproductive material cannot be used.

The Court dismissed the appeal with regret, acknowledging the painful and tragic circumstances confronting the wife. The Court granted a stay of the order for 60 days to permit the parties to consider their position on an appeal to the Supreme Court of Canada.

Family of Deceased Fights $1.5M bequest to the SPCA

November 17, 2020

A woman in Vancouver is contesting a bequest made in her great-aunt’s will in favor of the SPCA. A recent CBC story on the lawsuit can be found here: https://www.cbc.ca/news/canada/british-columbia/vancouver-family-heading-to-court-in-1-5m-inheritance-fight-with-spca-1.5803925

The deceased left the residue of her estate to the SPCA. The estate includes a valuable home in the Point Grey neighborhood of Vancouver. As a result of skyrocketing property values, it is estimated that the SPCA stands to receive approximately $1.5M from the estate.

The plaintiff is not the spouse or child of the deceased, so she does not have standing to vary the will. Instead, she wants to have a handwritten note composed by the deceased on her 99th birthday (in 2017) admitted to probate as reflecting the true final testamentary intentions of the deceased. The note purports to limit the amount of any gift to the SPCA to $100,000.

Section 58 of the Wills, Estates and Succession Act [“WESA”] allows the court to admit to probate a document or record that does not meet the technical requirements of a will. I have discussed this section in other posts, including one found here. This section would permit a handwritten note to be fully effective as though it had been made as part of the will.

In this case, the handwritten note is unsigned, undated and unwitnessed, and the deceased did not take any steps in the three years after writing the note to change her will to make it consistent with the note, so it will be interesting to see if it meets the test under s. 58 of WESA. The SPCA has also raised concerns about the deceased’s testamentary capacity when the note was written. If she had lacked capacity at the time, the handwritten note would not be effective as a testamentary instrument.

The plaintiff says that the SPCA is “greedy” for attempting to enforce the terms of the will, while the SPCA has called this a “challenging situation” for all parties.  The trial is set for January 2021.  However, as most estate litigation claims are settled in advance of trial through mediation and negotiation to avoid the expense and uncertainty of proceeding to trial, we may never know the final result.

What Rights do Disinherited Stepchildren have in British Columbia?

November 12, 2020

Blended families, second (or third or fourth) marriages, and stepchildren are now a common occurrence. Estate planning for blended families with stepchildren is a delicate issue, and the source of many estate litigation disputes.

For example, we often see the following scenario: A will-maker has children from a first marriage. The children are now independent adults. The will-maker re-marries. He makes a will leaving everything or substantially everything to his new spouse. The new spouse promises to make a will leaving what is left upon her death to the will-maker’s children. What rights do the children have, and when should they assert them?

There are a number of potential issues here.

First, if a will-maker in British Columbia fails to make adequate provision for the proper maintenance and support of the will-maker’s spouse or child, the spouse or child may bring a claim to vary the will. However, a “child” does not include a stepchild who has not been formally adopted. As a result, the children in the above scenario could apply to vary their father’s will, but they would not be able to wait and bring a claim to vary their stepmother’s will after her death.

What about the stepmother’s promise that she would make a will leaving everything to her husband’s children? Can the children rely upon that promise as the basis of a claim?

The children may have a remedy if their father and their stepmother made “mutual wills”. When two persons agree to make mutual wills, they agree that once the wills are made that no changes may be made by either party without the other party’s consent, and when one person dies the surviving party cannot change the disposition made in their will. The fact that the father and stepmother had identical wills at the time of the father’s death (which would be “mirror wills” ) is not enough. There must be clear and unequivocal evidence of an enforceable agreement between the parties that the survivor cannot not change their will after the death of the first person.

If the parties did not have “mutual wills”, and the stepmother has simply made a promise to make a will leaving her estate to the children upon her death, then the children may still have a remedy. If the children rely upon the stepmother’s promise and as a result agree not to bring a wills variation claim in relation to their father’s estate (because they will eventually receive the assets any event), then the court may find that there was an enforceable agreement between the parties, or that the children are otherwise entitled to enforcement of the stepmother’s promise.

All of this may be further complicated if the stepmother has her own children, mixes the father’s estate with her own assets, or spends or gifts away the father’s assets during her lifetime, and so the children may be better off making a wills variation claim at the time of their father’s death to avoid the future uncertainty and risk.  A child in this situation will want to carefully consider their rights (and strongly consider obtaining legal advice) at the time of their parent’s death, rather than waiting until the stepparent’s death.