In this heart-wrenching legal case, a family's grief over the loss of their daughter, a young RCMP officer, erupted into a fierce courtroom battle over $300,000. The officer’s parents, who had provided the funds to help her purchase her first home, claimed it was a loan. But her spouse insisted it was a gift, a crucial distinction that would determine whether the widow or the parents would keep the money.

In March 2020, the world ground to a halt as a result of the COVID-19 pandemic. Offices were shuttered, schools were closed, and in person meetings and gatherings were only permitted for essential purposes. Marilyn Bishop cancelled her appointment at her lawyer’s office to execute her new will. She had given her instructions, reviewed the draft, and made a few minor clarifications. All that remained was to have the will signed and witnessed. Ms. Bishop passed away before she could do so.

Denise, who is the oldest and lives in Ontario, is the child of Mr. Phillip’s first relationship.

Patricia and Jason, who live in B.C., are the children of his second relationship.

Avar, who lives in Trinidad, is the child of his third relationship.

Renee, who lives in B.C., is the child of his fourth relationship,

Mr. Justice Edleman, as he is required to do, balanced the interests of the testator and the children and varied the will. The Trial Judge stated as follows:

I am…of the view that a somewhat greater gift to Rose and Samsun is warranted given the clear intentions of Mrs. Tom. I will therefore order specific gifts of $300,000 to each of Rose and Samsun (or Samsun’s estate). The remainder of the estate is to be divided equally between the five siblings or their estates. In my view, this variation strikes the appropriate balance between Mrs. Tom’s clear intent to recognize the role of Samsun and Rose in her final years while meeting her moral obligations to her other children.

Appeal allowed and the Notice of Contention dismissed.

The application judge erred in finding that testator’s liberty interests were engaged by the provisions of the TFMA. The Lawens, as public interest litigants, did not put any evidence before the application judge which would have allowed him to determine that the liberty interests were engaged and, alternatively, even if they were engaged, whether they were in accordance with the fundamental principles of justice.

In a recent Wills & Estate Litigation case: McCulloch v Nociar, 2021 BCSC 1328, the Defendant applied to send the Plaintiff to an independent medical examination (“IME”) with respect to her “alleged allergies, disabilities, and other medical conditions which she alleges requires her to live in specialty housing, in particular a suite (the “Suite”) on property in Surrey, B.C. (the “Property”) owned by the applicant, and to allow access to that Suite to Total Safety Services Inc. to report on the character and conditions which establish it as specialty housing”.

BREAKING NEWS: Plaintiff ordered to an IME in a Wills & Estates Litigation case.

Undue Influence is a legal doctrine to prevent elder individuals from being taken advantage of by others; most often, their children or spouses.

The deceased in this case had six children and left no will; she had passed away in 2015. Three years prior to her death, at the age of 81, the deceased purchased a home with her youngest child (“Brad”) naming him as a Joint Tenant; Brad did not contribute any monies to the purchase of the home yet was named as a Joint Tenant. As Madam Justice D. MacDonald described: “Brad and [the Deceased] had an unconventional mother/son relationship. He spent almost every day with [the Deceased] from 2002 until her death in 2015. After they moved to the Sunshine Coast, Brad was [the Deceased’s] only companion. She had little contact with her other children after they moved.

In the construction of wills, the court’s primary purpose is to determine the intention of the testator (aka the will-maker). It is well settled law that the intention of a testator must be gathered from the language of the entire will, construed as a whole. It is only when the testator’s intention cannot be arrived at with reasonable certainty, by giving the natural and ordinary meaning to the words which he/she has used, that resort is to be had to the rules of construction which have been developed by the courts in the interpretation of other wills

As lawyers, it is important for us to advocate our client’s rights while always remaining objective. Objectivity - not pride, ego, vigor, greed, etc. - is the lawyers’ ‘sun’, whereas emotions are a lawyer’s ‘kryptonite’. Lawyers must balance the costs of litigation, with the merits of their client’s position. This is most true in cases involving family.

TRI-CITY LEGAL does not treat a will like a slice of Pepperoni or Hawaiian as opposed to online and virtual services.

Pleading undue influence places the burden of proof on the Beneficiary to confirm there was no such influence. TRI-CITY LEGAL has extensive experience prosecuting Undue Influence claims and can assist anyone that may have been disinherited due to suspicious circumstances: examples of such circumstances include, but are not limited to, the following:

-when the unequal transfer of the will-maker’s property occurs a short-time before his/her passing; and/or

-when the will-maker’s first Will is amended, unequally dividing the will-maker’s estate/assets/funds a short-time before his/her passing.