MacLean Estate Litigation’s, Vancouver Unfair Will Dispute Lawyers handle dozens of medium to high net worth estate disputes each year. These family disputes are complex and our Vancouver Will Dispute lawyers can help you reach a fair resolution or court ordered judgment so you receive your fair share of a loved one’s estate.
Our senior Vancouver Unfair Will Dispute Lawyers are often asked:
What happens when an abusive parent remarries and writes a Will and dies leaving his two estranged adult children out in the cold while leaving every thing to his new wife of 8 years?
WARNING new Family Law Act legislation and family rules impact unfair Wills and Will variation claims which means you need to speak to our top Vancouver Unfair Will Dispute Lawyers to get an assessment of what a fair share is in your specific case.
Contact us by clicking here to meet at any of our 6 BC offices or call us toll-free at 1-877-602-9900 to meet with us on an urgent basis.
Vancouver Unfair Will Dispute Lawyers Explain Second Marriage Rules 1 877 602 9900
The recent case of J.R. v. J.D.M., 2016 BCSC 2265 provides you and our Vancouver will dispute lawyers a tight and cogent summary of the rules that apply to a spouse to see if they have received their fair share of the estate. The fact pattern, in this case, involved some pretty upsetting behaviours by the father to his daughter from his first marriage including emotional, sexual and financial abuse.
Our Vancouver Will Dispute Lawyers handle high conflict family law and estate dispute cases as well as applications to manage the affairs of an elderly parent when there’s a fear of predatory relationships at play. Our Vancouver Will dispute lawyers step in to help stop behaviours that could result in someone being taken advantage of, to prevent family members from being excluded from a parent’s life or worse still being blocked from obtaining their fair share of that loved one’s estate.
Vancouver Unfair Will Dispute Lawyers Who Are also Top Rated* Family Lawyers Can Really Help You Obtain Justice 1 877 602 9900
[92] In assessing the strength of the legal and moral obligations owed by a testator to a second spouse, the court will consider factors such as:
(a) The length of the marriage;
(b) When and how the testator’s assets were acquired;
(c) The contribution of the second spouse;
(d) How family assets would be divided under the applicable family legislation upon marriage breakdown;
(e) Competing obligations with the children from the first marriage;
(f) Financial circumstances of the spouse;
(g) The size of the estate; and
(h) The magnitude of assets passing to the spouse outside of the estate in consequence of other pre-death transactions undertaken by the testator.
[See Wong v. Soo, 2015 BCSC 1741 at paras. 73-82; Saugestad v. Saugestad, 2006 BCSC 1839, varied on different grounds 2008 BCCA 38; Mawdsley v. Meshen, 2010 BCSC 1099, affirmed 2012 BCCA 91; Ciarniello v. James 2016 BCSC 1699]
Vancouver Unfair Will Dispute Lawyers
Our Vancouver Unfair Wills Dispute Lawyers just happen to also be Vancouver’s top-rated* family law firm. So, since the Court in a Vancouver Wills Dispute case must analyze what a spouse of a deceased would get if the parties had divorced, our lawyers are in a prime position to help you and the Courts sort out these difficult and emotionally draining cases. Here are the BC rules the judge and our Vancouver Wills Dispute Lawyers use to determine what a fair provision in a Will is:
[127] I turn to consider W.F.M.’s legal and moral duty to J.D.M. under the Tataryn framework.
[128] The Court in Tataryn suggested that guidance considering a testator’s legal obligations while he or she was alive may be found in the Divorce Act, R.S.C. 1985, c. 3 (2 Supp.), family property legislation or the law of constructive trust. In Tataryn however, the court did not conduct a detailed examination or make specific findings concerning property or how much support Mrs. Tataryn would have been entitled to in the event of a separation: Kish v. Sobchak Estate, 2016 BCCA 65.
[129] The judicial approach in British Columbia following Tataryn has been to determine the legal obligations to a spouse by considering the spouses’ entitlement on a notional separation immediately prior to death: Ciarniello at para. 70. However, Madam Justice Newbury affirmed in Kish that the analysis of a deceased spouse’s legal obligation need not be detailed or exact given the difficulty of drawing a direct analogy between the consequences of a marriage breakdown – which leaves both spouses with needs and obligations – and the death of a spouse. She underscored at para. 49 that an action under the WVA “should not normally become a proxy for divorce proceedings, complete with elaborate features and special rules applicable to a family law trial”.
[130] In this case it is common ground that the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA] should govern the analysis because that was the legislative scheme in force at W.F.M.’s death.
[131] The FRA provides in s. 56(2) that each spouse is entitled to an undivided half interest in family assets (absent a marriage agreement to the contrary) upon the happening of one of the events enumerated in s. 56(1), commonly known as a “triggering event”. Sections 58 and 59 define family assets. Pursuant to s. 65, if the division of property between spouses under the prescribed equal division would be unfair, having regard to the factors enumerated in s. 65(1), the court may order the property be divided into shares fixed by the court.
[132] The first step in the analysis is to assume a notional separation of the parties immediately before death. I note that the evidence on what constituted a family asset was not well-developed. For purposes of the analysis, I have assumed that the Property with an assessed value of $732,00 , W.F.M.’s RRSP valued at approximately $140,000 and the car valued at $28,000 were family assets. Given the imperfect evidence I have also included W.F.M.’s investments, bank accounts and interest in his numbered company with a total value of approximately $775,000 as family assets. W.F.M. had liabilities of approximately $35,000 as of the date of his death. The total value of the family assets less liabilities equals $1,640,000. A notional equal division of those assets is assessed at $820,000.
[133] In a case such as this involving an eight year marriage and where there was no contribution by J.D.M. toward the acquisition of the family assets in all likelihood that there would have been a substantial reapportionment in W.F.M’s favour on marital breakdown. She brought no assets into the marriage. As I mentioned, in 2011 W.F.M. transferred the title of the Property into joint tenancy with J.D.M. If one includes the benefits and assets J.D.M. received outside the provisions of the Will, at W.F.M.’s death she held property with a gross value of approximately $1,000,000. In all the circumstances, she received in excess of her notional legal entitlement to family assets. Given the income J.D.M. was earning in 2012 it is doubtful that, on a family law analysis, an order for spousal support in her favour would have been made. In any case, on W.F.M.’s death J.D.M. became entitled to annual pension payments of $36,360 for her lifetime.
[134] I conclude that W.F.M.’s legal duty to J.D.M. under the Tataryn framework was amply discharged through the provision W.F.M. made for her outside of the framework of his Will.
The court went on to find that the deceased Willmaker had inadequately met his legal and moral obligations to his estranged daughter and noted that the facts of his behaviour were sad and shocking. The court varied the Will to give $250,000 to the estranged daughter of his first marriage.
Call Our Family and Estate Litigation Lawyers
If you have a difficult estate fight or a tough Will variation dispute and you want someone to help you obtain justice, simply pick up the phone and call our skilled Vancouver Unfair Wills Dispute Lawyers at 1-877-602-9900.
