Bullet-proofing your will

The judge’s comment about the deceased — that “Anyone who defied her suffered her wrath” — played itself out in the courtroom when two of her four daughters attacked her will.

The strong-willed, domineering woman who died at age 88 was not here to defend her wishes, but they were largely upheld. And the small variation came at a significant cost to all concerned.

The judge noted that it was unfortunate the parties were unable to resolve their issues without the lawsuit, that:

“a great deal of unhappiness could have been avoided had a modicum of common sense and reason been brought to bear.”

Without the lawsuit, though, we would not have the benefit of the resulting legal analysis, set out in the decision of Mr. Justice G.C. Weatherill in Trudeau v. Turpin Estate 2019 BCSC 150.

The legal analysis helps clarify the law about what it takes to successfully attack a will. Knowing the factors the court considers in an attack can help us set up our own estates as bullet proof as possible. 

The judge listed six factors the court considers when considering a parent’s moral duty to independent children when making their will. 

I discussed the first three in my previous two columns (Contribution and expectation, misconduct/poor character and estrangement/neglect).

The fourth factor is gifts and benefits given while a parent is alive, or passing outside the framework of the will.

Your will deals only with assets that remain in your hands after you die. And it is important to consider that there are various ways assets still within your control at the time of death can sidestep the will process.

For example, a residence co-owned in “joint tenancy” automatically passes to the surviving owner(s) if one of them dies. The surviving owner simply files the death certificate at the land titles registry and the deceased’s name comes off the title.

Another example is where you specify a beneficiary for your RRSPs. 

Assets and benefits passing to a child before you die, or outside the will, can reduce or eliminate you moral obligation to include that child in your will.

Conversely, your moral obligation to a child can increase with assets and benefits passing to others outside your will. 

In this case, the daughter given the greatest share of the estate had already received approximately $43,000 of funds that had been held in joint names in bank and investment accounts.

The fifth factor is whether or not children have been treated equally. 

This simply recognizes society’s sense that it’s generally fair to treat our children equally.

It was clear to the judge in this case that it had been the mother’s intention and choice to treat her children unequally, which she had by allocating 60 per cent to one daughter, and only five per cent each to the two daughters


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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.

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