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 Tataryn v. Tataryn, [1994] 2 SCR 807, the will-maker had 2 adult independent children (J and E) and a spouse. The will-maker disliked their son J due to his religious convictions. In the Will, he acknowledged that he was excluding his son due to their strained relationship. The will-maker also left very little to his wife, despite her efforts in being a stay at home mom, due to his fear that she would give his assets to J. The will-maker left his wife a life estate in the matrimonial house and made her the beneficiary of a discretionary trust of the income from the residue of the estate, with their son E as trustee. After her death, everything was to go to E. The spouse and J claimed against the estate under the Wills Variation Act, s. 2(1) (as it was) for a lack of adequate provisions for their proper maintenance and support. This case was appealed up to the Supreme Court of Canada. The judge determined that the wife should have title to the matrimonial home, the rental property (for her lifetime, then to E), and everything else in the estate, other than a cash gift of $10,000 to each son.
HOW DID A LAWYER HELP?
In this case, the will-maker’s only legal obligations during his lifetime were toward his wife. This is because they had been in a long marriage in which they both contributed to their joint estate. Had they separated during his lifetime, the wife would have a claim to 50 percent of the estate. The children in this case did not have any specific needs, and since the estate was mostly in the form of real property, a modest gift to them appropriate. It is important to consult with a lawyer to understand the variables that a judge will consider in an estate variation claim. In some circumstances, adult children will have needs that must be accounted for. In others, a spouse may be wholly dependent on the joint estate to survive. Family law legislation cannot be claimed unless a couple has separated before the date of death, and thus estate litigation lawyers will be key in ascertaining the amount owed to a widowed spouse.
Lamperstorfer v. Lamperstorfer Estate, 2018 BCSC 89 involved an action by the children of the deceased to vary their father’s Will. The Will left 25% to each son, 10% to his ex-wife, and the remainder to other relatives who were not around for most of his life. Despite the children supporting their father emotionally and financially during his health decline, the father had delusions that his children were trying to kill him, due to his alcoholism and psychiatric issues. This lead to his distrust of them and this was reflected in the distribution of his Will. At the time of his death, one of his sons also struggled with alcoholism, and both sons struggled to support themselves financially. The court found that the deceased had strong moral obligations to provide for his sons. Each of his sons was awarded 40% of his estate. The ex-wife’s 10% share was not redistributed, as it was recognized that she provided consistent assistance to the deceased, even after they had divorced. The remaining 10% was apportioned between the other relatives mentioned in the Will.
HOW DID A LAWYER HELP?
In cases such as this, a lawyer will advocate for you in court to obtain an order to vary the Will, to reflect the obligations under the Wills, Estate and Succession Act. These claims can be lengthy and complicated, and it may be unclear if you have a claim or what evidence a judge will find convincing. To alleviate the stress of a court action while mourning the death of a loved one, consult with an estate litigation lawyer who can handle the arduous court process.
In the case of Clucas v. Royal Trust Corporation of Canada, 1999 CanLII 5519 (BCSC), the will-maker acknowledged the potential claim to vary her Will due to the exclusion of her adult child and addressed this in her Will. The estate was valued at approximately $440,000. She left her child a life interest in earnings from one-third of the residue of her estate (approximately $7,000-$8,000 per year), without power to encroach on capital. The remaining two-thirds of the estate had been left to the will-maker’s grandchildren. The child suffered from Parkinson’s disease, was in a chronic care facility, and was unable to work. The court determined that the Will had not made “adequate provision for the proper maintenance and support of” the plaintiff, and varied the Will to convert the income of the Plaintiff’s one-third of the residue of the estate to a lump sum payment of $200,000. The Plaintiff and the will-maker did not share a happy relationship, but he was not estranged. The deceased had no legal obligation to provide for her son as an adult independent child, but there was a moral obligation.
HOW DID A LAWYER HELP?
In this case, the plaintiff had a significant amount of costs that he could not cover himself, due to illness. Without bringing this case to court, he and his family would have continued to struggle to make ends meet. The judge considered the costs of his medical equipment and how this variation claim could significantly improve his life. This exemplifies the “moral” claims in the estate litigation process: despite being an independent adult, a parent may owe a moral obligation to provide for their child, when considering all relevant circumstances.
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.
In Gibbons v. Livingston, 2018 BCCA 1452, the Court clarified which claims should be made under family law and which under estate law. In this case, Ms. Gibbons and Mr. Livingston were in a common-law relationship before Mr. Livingston’s death. Despite their relationship, Mr. Livingston left his estate entirely to his son. Ms. Gibbons brought a claim under s. 60 of the Wills Estates and Succession Act for a variation of his Will in her favour. This was eventually settled through mediation, but she did not comply with the terms of the settlement. She then advanced a claim for division of family property under the Family Law Act, arguing that she and Mr. Livingston had separated by reason of his death, and thus his assets should be distributed according to the Act. The Court of Appeal rejected this, holding that “separation” under the Family Law Act does not include the death of a spouse. Here, because Ms. Gibbons and Mr. Livingston had not separated before his death, she had variation rights under the Wills, Estates and Succession Act, but did not have a claim under the Family Law Act.
HOW DID A LAWYER HELP?
There are many different pieces of legislation that may affect your rights on the death of a loved one, and you do not have a choice of which ones will or will not apply. This can make the path to realizing the assets you are entitled to unclear. An estate litigation lawyer can clarify whether your claim is subject to the Wills, Estates and Succession Act and ensure that time, money, and energy are not wasting bringing a claim under the incorrect legislation. This case also illustrates how cases can be resolved without going to court: a lawyer can help guide you through mediation instead, for a quick and efficient resolution of your claim. The lawyers at our office will also provide referrals if you require assistance from a lawyer in family law or other practice areas.
In Vinepal Estate (Re), 2018 BCSC 806, the petitioner applied for control of the remains of the deceased. She relied on subsection 5(1) of the Cremation, Interment and Funeral Services Act, S.B.C. 2004, c. 25. This act provides for an order of priority of those persons who may apply for sole control over the disposition of the remains of a deceased person. The father of the deceased argued that the deceased was not in a common-law relationship with the petitioner. The deceased’s mother supported the petitioner and their relationship. The issue on this application is whether the petitioner was the spouse of the deceased. The petitioner and the deceased were not married, but the petitioner submits she and the deceased had been in a “marriage-like relationship” for at least two years before the deceased’s death, which would mean the petitioner was the spouse of the deceased as defined in the Act. Some of the factors to be considered are whether the parties lived together, if they were in a monogamous relationship, if they both contributed to household maintenance, and their financial arrangement. In this case, the court was persuaded that the deceased and the petitioner had a marriage-like relationship for at least two years immediately prior to the deceased’s death, and thus she would have control of the remains.
HOW COULD A LAWYER REMEDY THIS SITUATION?
Unfortunately, the deceased in this case died suddenly at a very young age, and had not turned his mind to drafting a will at all. Had the deceased consulted with an estate planning lawyer prior to his death, he could have articulated his wishes in his Will to avoid the unnecessary stress and drama caused to his loved ones. In this case, a lawyer would be able to help interpret the law to determine the rightful owner of the remains and can help articulate this right in court. A lawyer can also help explain complex definitions in legislation such as the determination of who may be considered a “spouse” when a marriage has not occurred.
Can you transfer assets to certain children before your death, to ensure that your other children do not receive these assets through a wills variation claim?
In the recent case of Herbach v. Herbach Estate, 2018 BCSC 1459, a Will was challenged on the basis that it disproportionately favoured certain children of the deceased. Some children were gifted assets immediately prior to the deceased’s death, and others received very little through the Will, due to the depleted estate. The will-maker wished to transfer her assets before her death, to avoid having them go through probate, and thus being subject to the rules in the Wills, Estates and Succession Act concerning the moral obligation to provide for children. The will-maker hired an estate planning lawyer to transfer her property into joint tenancy with certain children prior to her death, and to help her draft a deed outlining her intentions in respect of her estate. Joint tenancy provides that when one joint tenant dies, his or her interest in the property passes automatically to the surviving joint tenant(s). This means that interest does not form part of the deceased person’s estate. The result of this estate planning technique was that the assets remaining in the will-maker’s estate, to be divided among all of her children, were diminished. The court found that the pre-death gifting was lawfully executed and therefore confirmed that this property did not form part of the deceased’s estate.
HOW DID A LAWYER HELP?
In this case, the court noted that pre-death gifts could go either way: they may be considered valid transfers, or they may be invalidated thus returning the assets to the estate, and in turn, the Will. There are situations where rights to an asset may be transferred to an adult child without the intention of a gift. For example, an adult child may be added to a bank account jointly to help an elderly parent manage their finances. In this case, the lawyer made the will-makers intention clear: she intended this transfer to be a gift. If the will-maker had not diligently planned her estate prior to her death, her assets might have been redistributed by the court to the excluded children. This case illustrates why it is important to meet with an estate planning lawyer to ensure your final wishes will be carried out by your Will and by the Court.
