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Achieving-Justice

A life, a will are judged

A recent court decision lists factors a judge considers when determining whether you have met your moral obligations to each of your children in your will.

The court decision, Trudeau v. Turpin Estate, 2019 BCSC 150, deals with an attack of a mother’s will by two of four daughters who were left shares of only five per cent each.

All four daughters were independent, ranging in age from 56 to 68.

As a society, we long ago passed a law requiring the court to vary a will if the testator has failed to meet their legal or moral obligations. That law is now found in section 60 of the Wills, Estates and Succession Act [SBC 2009] Ch. 13.

The judge in the Trudeau decision provided a list of six factors considered by the court when evaluating the strength of a testator’s moral duty to independent children. You should carefully consider these factors when making your own will.

I explained the first, Contribution and Expectation, in my last column.

The second is listed as “Misconduct/Poor character.” Section 63(b) of the Wills, Estates and Succession Act , allows the court to refuse to vary a will in favour of a person on the basis of their character or conduct.

A previous case, McBride v. Voth, 2010 BCSC 443, explains that only misconduct up to the date of death (not after death) is considered, that the misconduct must be directed at the testator and also that it must be quite severe in order to justify disinheritance.

The court gave examples of cases where disinheritance was not justified.

One was where a child was described as a disappointment overall. In another, the child was referred to as an “incompetent weakling.”

And in another, the child had been unsuccessful in multiple business ventures and had been referred to as having difficulty “fighting the battle of life."

A third factor considered by the court when evaluating the strength of your moral duty to a spouse or child is listed as “Estrangement/Neglect.”

The law has changed over time on this point. Historically, a long period of separation, abandonment or estrangement frequently reduced a parent’s moral duty to a child.

More recently, the court has been inquiring into and considering the role the parent played in the estrangement or relationship breakdown.

If the relationship breakdown has been largely the fault of the parent, their moral duty to an estranged child might even increase, rather than decrease.

And childhood neglect can also serve to increase the parent’s moral duty to provide for that child in their will. 

Family dynamics that lead to estranged relationships between parents and children are deeply painful and deeply personal.

A lifetime of attempts to reach out to a child who consistently responds with abuse might be something you keep close to your heart and not share with anyone.

If you leave that child little or nothing and he challenges your will after you have died, how can the court fairly evaluate whether you have met your moral obligations if all they have is that child’s side of the story?

Even if you have journalled that history, and that journalling is something the court would consider, there’s bound to be a “he said she said” fight about that long and painful family history.

How do you win such a fight if you’re not here? 

And can you imagine all of that deeply personal and painful family history aired in a public trial?

Next week, I will conclude this series with the remaining factors considered by the court when evaluating your moral obligations.

This area of the law is complex and I am able to provide only a very minimal glossing over of the subject matter in my column.

Please obtain legal advice specific to your particular circumstances to ensure your testamentary intentions will best survive an attack, or to consider attacking a will where you have been unfairly dealt with.



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Daughters attack mom's will

Last week, I started telling the story of a lawsuit where two of four daughters had attacked their mother’s will.

Each of the two had been left only five per cent of an estate worth more than $2 million.

The daughters ranged in age from 56 to 68. Their mother died at the age of 88.

The court decision, Trudeau v. Turpin Estate, 2019 BCSC 150, was released earlier this year.

Their first line of attack was that Dorothy, the daughter left with the lion’s share of the estate, had exerted “undue influence” on their mother.

They failed miserably on that point.

The court described their mother as having dominated all the relationships she had with her children, including Dorothy. The court went so far as to note that “Anyone who defied her, suffered her wrath.”

But the law allowed them to go further, to attack the very allocations their mother had chosen to make in her will.

Their right to do so came from section 60 of the Wills, Estates and succession Act [SBC 2009], Chapter 13 .

The actual words of that section are as follows:

“…If a will-maker dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker's estate for the spouse or children.”

I imagine the domineering matriarch turning over in her grave if she knew that her daughters had dared to challenge her testamentary wishes.

And how unfair that they were able to do so behind her back, their mother no longer here to defend the allocations of over $100,000 to each of them as having been “adequate, just and equitable in the circumstances."

By learning how the courts apply that legislative provision when second guessing a testator’s allocations, you can be best armed to anticipate how your own will might be attacked and take steps while you are alive to protect against that.

When beneficiaries are independent children as in this case, the court consider allocations in the will in light of the testator’s “moral duties” to each of the children.

The court assesses moral duties on the basis of “society’s reasonable expectations of what a judicious person would do in the circumstances.”

Mr. Justice G.C. Weatherill listed six factors considered by the court “when determining the existence and strength of a testator’s moral duty to independent children.”

He referred to a previous case of McBride v. Voth, 2010 BCSC 443 where the factors were summarized and explained.

The first factor is "Contribution and Expectation."

The “contribution” part has to do with what a child has done or contributed to help build or grow the estate, or to provide other types of help, support or care to the testator.

When we help out our parents, we hopefully do so out of love, without holding out for bigger share of their estate. But the amount of time and financial support a parent needs can become quite significant over time and often falls much more on the shoulders of one of the children.

A will should be reviewed as circumstances change. An equal distribution might have been perfectly fair at one time, but not so much after one child has made considerable personal and financial sacrifices caring for and supporting an aging parent.

The “expectation” part is when the testator has acted in a way that has led a child to a reasonable and good faith expectation that he or she will receive something from the estate.

In this case, Dorothy (the one who received the lion’s share of the estate) had lived most of her life in a second residence on the mother’s property while her sisters had acquired residential properties of their own.

The court found that “Dorothy had a reasonable expectation that she would not be left homeless” after their mother died. This expectation was supported by journal entries by the mother that she wanted Dorothy to have a house in exchange for her contributions and care over the years.

Might you be acting in such a way that one of your children might be reasonably expecting something from your estate? What might you do to avoid a miscommunication or misunderstanding?

I plan on reviewing the other five factors in subsequent columns, hoping to help you learn about how to best ensure that your wishes will survive an attack after you have passed.

But this area of the law is complex, and I am able to provide only a very minimal glossing over of the subject matter in my column.

Please obtain legal advice specific to your particular circumstances from a lawyer with expertise in wills and estate planning to maximize the likelihood that your intentions will not be interfered with, and to minimize the likelihood of a lawsuit.



You can't take it with you

You can’t take it with you. But how much control do you have over what happens to your estate after you’re gone? 

A recent court decision sheds light on a number of legal factors.

The decision: Trudeau v. Turpin Estate, 2019 BCSC 150 also shines a bright spotlight on very personal (at times sordid) details of the lives and relationships of a strong matriarch and her daughters who were fighting over her estate.

Details that at least one wished had remained in the shadows, even to her. She was quoted as saying: “I wish I hadn’t learned all that I’ve learned – I didn’t need to know it.”

Want to maintain your family’s privacy? 

The more predictable the outcome of a lawsuit the less likely a trial will be required. Encase your testamentary wishes in as much steel and concrete as possible to dissuade your beneficiaries from attempting to challenge them.

The matriarch died with an estate consisting primarily of a piece of residential property valued at more than $2 million.

An earlier will had the estate divided equally among the four daughters. The matriarch later changed her will, reducing the shares of two daughters from 25 per cent to five per cent.

In dollar terms, that was a reduction of more than $400,000 each.

One daughter, Dorothy, gained the most. Her share grew to 60 per cent, an increase of over $700,000.

The two daughters with reduced shares attacked their mother’s will.

One line of attack was that Dorothy had exercised “undue influence” over their mother.

If ever there was someone in a position to exercise influence, it was Dorothy. She had lived on their mother’s property for over three decades. And the revision to the will was made the year before the matriarch passed away, at age 87, when she would have been expected to be most vulnerable to being influenced.

And Dorothy had driven her to the lawyer’s office.

But for a beneficiary’s influence to invalidate a will, it must go a lot further than what you might expect. The court defined undue influence as “influence which overbears the will of the person influenced so that what he or she does is not his or her own act.”

That’s a mighty high threshold. But if a presumption of undue influence has been made out, the law places the burden on the beneficiary defending the will to prove that the testator acted as a result of her own “full, free and informed thought.

How do you do that after the testator has passed away?

You shine that dreaded spotlight on the family relationships and dynamics.

After hearing all the evidence, the judge concluded that the matriarch

“…was a stern, strong-willed, no-nonsense, and domineering woman. She held strong points of view and unrelenting opinions and philosophies and was not easily dissuaded from them. She was well able to stand up for herself, defend her beliefs, and was quite prepared to assert her views. Anyone who defied her suffered her wrath.”

With comments like that, it won’t surprise you that “undue influence” attack failed.

It helped that the matriarch had her will done by an experienced lawyer.

It is part of a lawyer’s job when taking will instructions to assess not only your cognitive capacity to give those instructions, but also to take precautions to avoid a person acting under what the law defines as “undue influence”.

It also helped that the matriarch had kept a journal. Entries indicated a longstanding intention to divide her estate in a way that was similar to what ended up being her final will.

But that wasn’t the end of the attack.

Even if you are of completely sound mind and not under the “undue influence” of another, your will can be attacked on the basis that it does not “…in the court’s opinion, make adequate provision of the proper maintenance and support of the will-maker’s spouse or children”.

You can read the provision for yourself. It comes from section 60 of the Wills, Estates and succession Act [SBC 2009] Ch. 13 .

In future columns, I will share how that legislation has been applied by the courts in this and other cases, which will help with understanding how you might protect your testamentary intentions.

Please obtain legal advice from a lawyer with expertise in wills and estate planning to maximize the likelihood that your intentions will not be interfered with, and to minimize the likelihood of a lawsuit.





The judge was wrong

Does small vehicle damage mean no injury? 

ICBC would have you think so, but medical science and the law are not on their side.

This issue was a point of contention dealt with by our Court of Appeal in the recent decision of Greenway-Brown v. MacKenzie, 2019 BCCA 137.

The plaintiff, Ms. Greenway-Brown, had been in five separate motor-vehicle collisions. She was assessed at fault for the first, but the innocent victim of the other four.

Each collision had resulted in very little damage to her vehicle.

The trial judge, who had come into the courtroom with assumptions about the relationship between vehicle damage and injury, dismissed Ms. Greenway-Brown’s claims in a decision cited as Greenway-Brown v. Kyung, 2018 BCSC 287.

Ms. Greenway-Brown appealed. A three-judge panel of our Court of Appeal released their decision on April 24, 2019.

The Court of Appeal quoted from established legal precedent.

One case quoted from was from 1993. The judge in that case made the strong statement that an assumption that no vehicle damage means no injury has no application in court. He noted that

“…it is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.”

Carrying on, that judge noted:

“Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.”

In Ms. Greenway-Brown’s case, a physiatrist (medical specialist in physical medicine and rehabilitation) had given sworn testimony that there is

“…very little correlation between vehicular damage and injury, and the severity of impact in a motor vehicle accident is one of many factors that can lead to injury."

The Court of Appeal found that the judge’s assumptions about the relationship between vehicle damage and injury to be without evidentiary foundation.

The Court of Appeal concluded as follows:

“This is not to say that the severity of impact cannot be a relevant factor in assessing evidence of injury, but it is one factor, which must be grounded in evidence, not speculation. In my view, the judge’s assumption, unsupported by evidence, was an error in principle that permeated his approach to the evidence and his assessment of the appellant’s overall credibility.”

Do you make the same error when you pass the scenes of fender benders?  Do you assume that small damage to the bumpers of vehicles means that the occupants are unharmed?

It is an attractive assumption. We like to think that we are safe, that smaller impacts occurring so regularly on our roadways will not seriously hurt us.

We are reinforced in that thinking when we see those involved in smaller impacts get out of their vehicles, appearing perfectly fine. And when we listen to media reports inaccurately reporting “no injuries” without knowing how crash injuries work.

The reality is that for typical car crash injuries, it takes time for injured tissues to become inflamed.

What are other words for when assumptions are made without evidentiary foundation? 

How about all those “isms” such as racism, sexism and ageism.

Please understand that very serious, long term consequences can flow from your regular, every day fender bender.

And please adjust your level of attentiveness to the road accordingly.



More Achieving Justice articles

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About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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