Estate Litigation Case Studies

In Ciarniello v. Ciariello Estate, 2016 BCSC 1699, the will-maker and his wife lived together for 39 years. He had five adult children (including three from a previous marriage). In his Will he left his wife the remaining interest in their matrimonial home, and divided the residue of his estate between the children. One unforeseen result was that because the wife owned the matrimonial home jointly with her husband, his share of the home would have automatically transferred to her on his death. This meant that he had, in effect, left her nothing in his Will. Additionally, there was a large tax owed on the estate, that the wife had to pay using her RIF. Her children supported her variation, but his children from the other marriage opposed it. The court determined that the wife was entitled to a larger portion of the estate, and took into consideration the large tax bills that her husband had left her to pay. The will was varied to provide 25 percent of the estate to the wife.

HOW DID A LAWYER HELP?

If a Will is not drafted correctly, there can be many issues upon death. While it may not have been the intention of the will-maker to leave his wife with nothing, this was the result. The court can consider many factors in wills variation claims, such as the effect of taxes in the present case. An estate litigation lawyer will help to identify any issues arising from a Will and make arguments on your behalf to ensure that you have not been accidently forgotten by a poorly drafted Will.

In the case of Devore-Thompson v. Poulain, 2017 BCSC 1289, there was an application made to the court to declare the deceased’s marriage void, thus invalidating the gifts in her Will. The will-maker was diagnosed with Alzheimer’s Disease in 2005 and in 2008 was declared incapable of managing her financial and legal affairs. She moved into a care facility in 2010, where she remained until her death in late 2013 at age 74. The deceased had “married” in 2010, but she and her “husband” never lived together either before or after that date. Because the deceased was incapable of appreciating the nature of her marriage or understand who her “husband” was to her at the time of the marriage, the marriage was declared void. The Court determined that she lacked testamentary capacity when she made the will that left her assets to her “husband” and excluded her family members.

HOW DID A LAWYER HELP?

A lawyer will go to court for your loved ones to ensure that they are not taken advantage of when they are most vulnerable. In cases such as this, it is important to understand the evidence required by the court, as a case of undue influence can be difficult to prove. There may also be tension between family members due to the scammer which makes it difficult to obtain the information you need. An estate litigation lawyer will be able to assess your claim as an objective party and provide advice to help mitigate the damage from a predatory marriage.