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October 22, 2004
Avoid confusion with a will
Even a clear, verbal declaration may not be enough to settle an
estate.
ALAN E. FARBER SPECIAL TO THE JEWISH BULLETIN
No matter your age, it is always advisable to have a current will.
If your will was prepared for you several years ago, you should
have its contents reviewed and you should do so on a regular basis
and update it if necessary. Young or old, we do not know what the
future has in store for us.
Why is it necessary to prepare a will?
First, in a will, you can choose your executor, the person you wish
to administer your estate and distribute its assets as you have
decided. Second, a will allows you to decide how your assets will
be distributed. Third, you can make specific gifts to charities
or to individuals. Fourth, you may establish trusts so that money
can be distributed over time in a manner that you choose to be most
appropriate, especially for minors.
If you do not have a will then, upon your death, your estate will
be declared "intestate." Rather than an executor and trustee,
the court will have to appoint an administrator pursuant to the
Administration of Estates Act. This requires a court application
and may prove to be expensive, especially if more than one person
wishes to apply to be the administrator. The estate will be distributed
in accordance with the provisions of the act. In accordance with
that legislation, the first $65,000 goes to your spouse. The balance
is divided between spouse and children alive at your death. If there
is no spouse, the children share equally. If there is a spouse but
no children, the spouse gets everything. If there is no spouse and
there are no children, then your estate is divided in accordance
with a kinship table.
I recently tried a case that went to the B.C. Court of Appeal. A
woman was 85 years old. She had lived alone for more than 30 years,
having divorced a man who subsequently passed away. She had no children
and had no contact with any relatives. She had some very pleasant
neighbors who assisted her regularly.
The woman went into hospital suffering from a severe respiratory
illness. She told the hospital staff that she wished to make a will
and to leave everything in her estate, which was in excess of one
million dollars, to her neighbors. The hospital staff spoke to a
lawyer who rushed to the hospital for the purpose of drafting a
will. Unfortunately, approximately one hour before the lawyer arrived,
the woman slipped into a coma and was unable to give the lawyer
instructions or to execute a will.
The Wills Act states that all wills must be in writing. We made
the argument on behalf of the neighbors that the deceased had disposed
of her estate by way of a gift to her neighbors during her lifetime
as she told everyone around her immediately before her death that
she wanted to give her entire estate, which included her house,
to her neighbors. This disposition proved inadequate to our court,
even though her intention was clear. The result was that distant
cousins who lived in another country, who had been unaware of the
existence of this elderly relative, received the estate. This could
have been avoided by the preparation of a simple will.
It should be noted that even though a will is prepared it is not
free from attack in our courts by either a spouse or children. The
Wills Variation Act of British Columbia makes it clear that a deceased
person must provide adequate support and maintenance for a spouse
and children. It should be emphasized that this only applies to
the spouse and children, and no other person no matter how needy
or close to the deceased can apply.
The courts have said that the first consideration is the right of
the deceased person to make a will and to leave assets in any way
he or she sees fit. Having said that, however, the court will then
look at whether the deceased has acted as a judicious parent or
spouse. Furthermore, the children of the deceased do not have to
be infants or in the care of the deceased but may be adult and independent
and may still maintain a claim.
Many cases deal with the claim of a widow in conflict with the children
of the deceased of a previous marriage or a dispute between siblings
who have been treated unequally by a parent. The Supreme Court of
Canada established the priorities of how our courts should deal
with situations in varying the will to provide for the spouse and
children.
First, there is a legal obligation to support spouse and infant
children, then there is a moral obligation to provide support for
adult dependent children and then for adult independent children.
Other factors that the court must take into consideration are the
size of the estate and whether it can be distributed so that everyone
can benefit.
Under the Wills Act a person may insert a clause or leave a letter
explaining why the spouse or child is being disinherited or treated
differently in sharing the estate. If the reason is valid and rational,
the court will take it into consideration and may uphold the wishes
of the deceased. For example, if a deceased had three children,
two of whom were attentive and assisted throughout the deceased's
life, while the third did not contact the parent, did not assist
the parent, did not share with the parent or animosity occurred
between the parent and the child, the court might refuse to vary
a will disinheriting the third child.
The law regarding estates can be complex and our courts are filled
with cases of individuals attempting to establish their rights with
respect to an estate. The most effective tool to avoid these complications
is a simple, straightforward will setting out in unambiguous terms
your wishes for your estate. This is the most important step to
avoid expensive, time-consuming litigation.
Alan E. Farber is a senior partner of Farber & Co.,
Barristers and Solicitors. His practice emphasizes wills and estate
litigation. He can be reached at 604-685-8995 or [email protected].
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