A top* Vancouver Wills Variation Lawyer, such as those at MacLean Estate Litigation know that losing a loved one is sad. However, learning you have been unfairly left out of their Will can be just as upsetting. A Vancouver Wills Variation Lawyer can assist you in getting your fair share of the estate and interim advances you need to live and make ends meet while things are sorted out. Our legal team is the multiple award winner as Vancouver’s top-rated* family law firm.
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A skilled Vancouver Wills Variation Lawyer knows the new WESA act allows for a court to vary a will if the deceased has failed to meet his moral and legal duty to a beneficiary. But” left out of the estate” clients, unlike a good Vancouver Wills Variation Lawyer may not know strict deadlines apply for setting aside an unfair Will. Call a skilled Vancouver Wills Variation Lawyer at MacLean Estate Litigation before it is too late to fix the problem of an unfair Will. Get the help you need to ensure justice is done.
Vancouver Wills Variation Lawyer – Interim Advance Rules
Our Vancouver Wills Variation Lawyers were interested in the recent Davis v. Burns Estate 2016 BCSC 1982 case as it dealt with competing interests of beneficiaries of a Will and those who were upset with the Will’s mandate. Sometimes children and beneficiaries need money to live until the dispute is sorted out but other people say if the money is given their share might b jeopardized at the Trial. So what rules apply to balance everyone’s interests?
The issue that arose was: Can disgruntled Claimant’s block distribution to someone who is given a share in the Will?
[1] This is an application under section 155 of the Wills, Estates Succession Act, S.B.C. 2009, c.13, (the “Act”) and Rules 8–1, 14–1, and 22-1 of the Supreme Court Civil Rules for the payment of an interim distribution of $250,000 from the estate of Patricia May Burns (“Patricia”) to the defendant Brent Arthur Dale (”Brent”).
Discussion of the Legal Principle to be Applied
[31] In Hecht v. Hecht Estate (1991), 62 B.C.L.R. (2d) 145 (C.A.) at paras. 42- 46 the Court of Appeal set out a number of the factors the court was to consider when deciding whether to exercise its discretion to grant leave to the executors to make an interim distribution when Wills Variation Act proceedings have been commenced. The Wills Variation Act, R.S.B.C. 1996, c. 490, was repealed and replaced by the Act under which proceedings have been commenced by Leslie. Those factors included:
a. the amount of the benefits sought to be distributed as compared to the value of the estate;
b. the claim of the beneficiaries on the testator;
c. the need of beneficiaries for money; and
d. the consent of the residuary beneficiary to the proposed transfer.
See also Henney v. Sander, 2014 BCSC 889 at para. 38.
Application of the Legal Principles and Decision
[32] The current residual value of the estate, after sale of the house, is $2,569,804.61. Brent seeks a distribution of $250,000. Patricia’s estate would conservatively be valued at $2,300,000 after expenses assuming the litigation proceeded. Brent’s share in the residue of the estate would amount to $460,000, assuming Leslie is not successful.
[33] If Leslie is successful I do not think she would be awarded an interest in excess of 50% of the residual value of the estate, given the expressed intentions of Patricia in the 2006 letter and in her two wills. I emphasize however that I make no findings whatsoever concerning the entitlement Leslie may or may not have to share in Patricia’s estate. This entitlement is a matter solely reserved to the trial judge. I must apply the factors set out earlier in Hecht.
[34] Clearly both Brent and George have claims on Patricia’s estate as both are named in her 2010 Will. George is granted an 80% share of the residue of the estate in both her 2005 and 2010 Will. Patricia’s reasons for granting him this portion of her estate are set out in her 2006 letter as noted above.
[35] Brent has need for money as his income does not cover his expenses and the wishes of Patricia that he enjoy the ability to travel and enjoy his remaining years are unfulfilled because the affairs of the estate have not been able to be wound up as Leslie’s lawsuit remains outstanding.
[36] The remaining beneficiaries, George and Leslie, do not consent to an interim distribution being made to Brent unless a similar interim distribution is made to them. While George may be entitled to and ought to be granted an interim distribution, he has not brought a separate application for such interim distribution by which the court can judge whether or not he meets the factors set out in Hecht. Accordingly, I am not prepared to order an interim distribution be made to George without such application being before me.
[37] Leslie is not a residuary beneficiary. She issued her notice of civil claim on August 21, 2015. Responses to the civil claim were filed by the executor and by George on September 17, 2015 and by Brent on October 28, 2015. This application was filed September 13, 2016. No steps have been taken in the claim filed by Leslie. The outstanding litigation has resulted in no distributions being made from the estate and a frustration in fulfilling the terms of Patricia’s wishes as expressed in her 2010 Will. In my view, it would be equitable not to grant Brent’s application.
[38] I find there is no prejudice to either George, who can bring his separate application for an interim distribution, or Leslie, who can pursue her claim against the residue of the estate on an expeditious basis.
[39] For the above reasons I grant Brent’s application. The cost of this application will be paid from the estate.
