Warning: Attempt to read property "ID" on null in /srv/users/serverpilot/apps/richtertriallaw-production/public/wp-content/themes/richter/archive.php on line 16
Blog Posts
Background
Justice Douglas refused to prejudge a wills variation claim on an interim application. In Rivers v. DeVouge, 2022 BCSC 2267, John Richter successfully defended an application brought by the plaintiff wife. The deceased husband prepared a new will and created an alter ego trust shortly before he died. He transferred many of the assets into the alter ego trust which provided the wife a $300,000 payment. Upon his death, the wife brought a claim to challenge his will and trust on the basis of capacity, raised a section 151 WESA issue to recover assets for the estate, and brought a wills variation claim.
The plaintiff brought an application to receive the $300,000 from the alter ego trust. The alter ego trust, corporation and estate retained Richter Trial Lawyers which argued that if she were successful in her claim, there would be no alter ego trust and therefore the $300,000 could not be paid out of a nonexistent entity. We further argued that the court must follow the orderly assessment of the legal issues, first the validity of the trust and will, second determining what is in the estate, and only third a wills variation claim.
Law
Justice Douglas agreed with these arguments relying upon Schell Estate, 2019 BCSC 2168 that it is generally improper to include a wills variation claim with an action for proof of the will in solemn form. A valid will is a precedent to a wills variation claim. Justice Douglas also agreed with the second and third arguments in finding at para. 52
[52] By challenging the validity of the Trust, the plaintiff has created an impediment to the interim distribution she seeks, pending a determination at trial of the validity of the Trust. Plaintiff’s counsel suggests that a court order authorizing the trustees to pay funds out of the Trust would insulate them from any breach of trust claim. However, in my view, such an order effectively requires me to pre-determine the Trust’s validity.
Judgement
The plaintiff’s application was dismissed with costs in the cause. John Richter and Richter Trial Lawyers specialize in estate litigation and in particular wills variation claims. If you are searching for an experienced estate litigation or wills variation lawyer, contact Richter Trial Lawyers for a free consultation.
Background Justice Douglas refused to prejudge a wills variation claim on an interim application. In Rivers v. DeVouge, 2022 BCSC 2267, John Richter successfully defended an application brought by the plaintiff wife. The deceased husband prepared a new will and created an alter ego trust shortly before he died. He transferred many of the assets […]
Common questions that people have in British Columbia estate law include: “Is a draft will legal” or “binding” or “valid”? This article attempts to give some guidance on how to answer those questions. In British Columbia, for a will to be valid, it must meet the requirements found in Section 37 of the Wills, Estates […]
A recent court of appeal decision makes it clear that evidence of a full and complete gift (rather than resulting trust) does not necessarily mean a “deed of gift”. The recent court of appeal case regarding the McKendry Estate involved Mary McKendry (deceased), her 5 children (4 daughters 1 son), and the Vancouver property purchased by […]
There’s nothing worse than dealing with a bad executor after the death of a loved one. They have all the control and as beneficiary you have all of the rights, or so you’re told. But what if they just won’t be reasonable? They say they’re going to tie up the estate up years. They are […]
British Columbia wills variation lawyers have pause to remember one of the great warriors of the past. One of the seminal decisions for the unique British Columbia statutory provision giving the court authority to change a will is the now 83-year-old Supreme Court of Canada Contested Will Claim Walker v. McDermott [1931] SCR 94. This […]
Beyond a consideration of the competing legal claims are the moral claims which the courts must consider in deciding a Wills Variation Act claim. These moral claims are usually more individual and specific than legal claims and can include the most varied considerations, some of which be assured/implied expectations, disability and financial circumstances. It will […]
The most intriguing part of the Wills Variation Act (now the Wills, Estates and Succession Act) is that “adequate provision for the proper maintenance and support” and “adequate, just and equitable” is judged in light of contemporary community standards, legal and moral. These legal and moral standards are different in different parts of our country, different in […]