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
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.
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
 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.
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 […]
British Columbia’s new wills regime, the Wills, Estates and Succession Act (WESA) came into force on March 31, 2014 to revise and replace the outdated Estate Administration Act, Probate Recognition Act, Wills Act, and the Wills Variation Act. WESA is still brand new and many of its provision are still being interpreted for the first […]
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 […]
In BC, the Family Law Act and Wills, Estates and Succession Act define the term spouse by reference to the term “separation”. Under WESA, section 2 provides that spouses cease to be spouses as follows: If they are married, on separation as it is considered under the FLA; or If they are living in a common […]
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  SCR 94. This […]
Can my teenager make a will and can I wills variation it? Section 36 of the new Wills, Estates and Succession Act (WESA) says that a person who is 16 years old and mentally capable of doing so can make a will. A 16 year old making a valid will is new in British Columbia […]
Recently in Easingwood v. CRockroft, 2013 BCCA 182, the honourable Madam Justice Saunders of the British Columbia Court of Appeal considered the legalities arising when an attorney under a power of attorney creates an alter ego trust on behalf of a principal. For a better understanding of alter ego trusts, please click here. The case […]
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 […]
It was the earlier lobbying of women’s groups in the early 20th century that was responsible for the enactment of the first Wills Variation Act (now the Wills Estates and Succession Act). The evolving rights and role of women in society has continued to stand behind the interpretation of the Wills Variation Act by the […]
A BC estate is subject to the Wills, Estates and Succession Act (WESA, formerly the Wills Variation Act). WESA allows spouses and children to vary wills of their parents and spouses. In such cases, the court struggles with balancing two principles: that a deceased has the right to choose what should happen with their assets […]
Estate litigation lawyers use part of the Wills Estates and Succession Act (or WESA, formerly the Wills Variation Act) when varying wills. In British Columbia, wives, husbands and children are protected from their parents or spouses writing wills and leaving their assets in a way that offends contemporary community standards. Section 60 of WESA (formerly Section […]