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Disinherited Will Lawyer Vancouver

Recent cases under WESA make it clear that parties to a BC disputed will dispute or an unfair Will variation case need a top WESA disputed Will lawyer. Don’t risk leaving your loved ones out in the cold after your death or if you are a beneficiary wrongly left out of the Will don’t be shut out unfairly by a testator. When errors are made it is critical that wronged beneficiaries contact a MacLean Law experienced WESA Disputed Will Lawyer. An initial consultation with a top WESA disputed will lawyer will help you see your options more clearly. A recent BC case set aside a Will that gave everything to a deceased Will maker’s ex spouse and nothing to the two children of their relationship. This new case pointed out pitfalls for the unwary and new corrective rules available under our new WESA legislation.

The Deceased Will Maker’s Error Leads To Unfair Result

Here are the facts and the law from Heathfield v. St. Jacques distilled down to their essence:

[1]             On November 13, 2011, Michael Alan Heathfield (the “Deceased”) died suddenly at the age of 53. He was survived by his two minor children, Zachary and Shanon.

[2]             Approximately seven years before his death, the Deceased executed his last will dated August 7, 2004 (the “Will”). The Will was made when the Deceased’s personal circumstances were vastly different than those in existence at the time of his death. Most notably, when he made his Will, he was in a common-law relationship with the defendant, Nicole St. Jacques, who is the mother of Zachary and Shanon. Although they permanently separated on July 6, 2006, the Deceased did not change or revoke his Will or make a fresh one. In the circumstances that have occurred, Ms. St. Jacques is the sole beneficiary of the Deceased’s estate.

[48]         The essence of the WVA is embodied in s. 2.  It provides that if, in the Court’s opinion, a will fails to make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court is empowered, in its discretion, to vary the will to make the provision it considers adequate, just and equitable in the circumstances.

[49]         Tataryn v. Tataryn, [1994] 2 S.C.R. 807 [Tataryn], is the leading authority in British Columbia on wills variation.  In Tataryn, the Supreme Court of Canada identified the two fundamental interests protected by the WVA. The main statutory objective is the adequate, just and equitable provision for a will-maker’s spouse and children; the other is the will-maker’s testamentary autonomy.

In this regard, it must be appreciated that at the time of the Deceased’s death, s. 16 of the former Wills Act, R.S.B.C. 1996, c. 489, was in force. It stipulated that a gift in a will to a married spouse was revoked if, after the will was made and before the will-maker died, the marriage was declared a nullity, there was a judicial finding the marriage was void, or a divorce or decree of judicial separation was granted. In those situations, the will would take effect as though the estranged or former spouse had predeceased the will-maker.  The policy behind this rule was to prevent a spouse from deriving a benefit from the estate of the deceased spouse where their spousal relationship had broken down or dissolved and the deceased spouse had neglected to update his or her will.

[82]         Section 16 applied only to married spouses and not to common law spouses. The lack of symmetry between the two spousal groups was rectified with the enactment of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (the “WESA”) which came into force effective March 31, 2014. Section 56 of the WESA provides that, subject to a contrary intention appearing in the will, a gift to a person who has ceased to be a married spouse or a common-law spouse is revoked and must be distributed as if the surviving spouse had predeceased the will-maker. Section 56 stands as a significant safeguard against a floodgate of litigation in cases of this kind where the will-maker dies on or after the WESA came into effect, leaving a will dated either before or after March 31, 2014.

[83]         To this I would add that s. 58 of the WESA empowers the Court to treat testamentary-like writings that do not comply with the statutory execution requirements, such as the Deceased’s interlineations on the Will, as though they are a valid will or alteration to or revocation of a will, where it is satisfied that they represent the maker’s testamentary intentions.  In cases with facts akin to those present here, the ability to invoke the Court’s remedial power to validate such non-compliant writings serves to further downgrade the forecast of a litigation floodgate to a mere trickle.

Court Remedies Unfair Will and Creates Two Equal Trusts For Each Child

[84]         Ultimately, the search is for contemporary justice in light of modern expectations and values. Those expectations and values are dynamic and “are necessarily bound by the views and awards made in earlier times:  Tataryn at 814-15.

[85]          In weighing the totality of the evidence in the light of the animating principles, I conclude that by leaving the entirety of his substantial estate to his former spouse to whom he owed no legal or moral duty, and on whom he was not relying and with whom he did not have an agreement as to how she would subsequently provide for the children, the Deceased did not fulfill the legal or moral obligations of a contemporary judicious parent. The proposition that he discharged his legal and moral obligation to Zachary and Shanon, and thus adequately provided for them under his Will, is untenable when assessed within the Tataryn paradigm. In the circumstances of this case, the testamentary disposition under the Will in the nature of a gift-over to the Deceased’s children, which will never come about, does not fall within an appropriate range of options.  In the result, the Will fails to make adequate provision for Zachary and Shanon.

[86]         The Will is to be varied only to the extent required to provide the just provision to Zachary and Shanon that the Will failed to achieve, commensurate with the intense legal and moral obligations owed to them by their father. In my opinion, in order to appropriately discharge the Deceased’s legal and moral obligations to his minor children, the Will is to be varied so as to create testamentary trusts for them, funded by the entire residuary estate.

When you need a top WESA disputed Will lawyer call Lorne MacLean, Q.C. at our downtown Vancouver office toll free across BC at 1-877-602-9900. Meeting with a top WESA disputed will lawyer will help ease the pain and confusion of losing a loved one.