Mark S. Weintraub
May, 1996
SILBER WEINTRAUB
BARRISTERS & SOLICITORS
KNOW YOUR INHERITANCE RIGHTS
Literature, theatre and film have long recognized the powerful emotions that arise around Wills. In this area of practice, fiction is not too far from reality. Passions run so deep that otherwise non-combative individuals can find themselves in litigation. Mark Weintraub has acted as counsel on various issues related to Estate Litigation. This Executive Summary highlights one of his papers which addresses broad principles on inheritance rights. The paper which this Executive Summary highlights is intended to be presented to lay people as a basic introduction to inheritance rights.
- In British Columbia, as in other common law jurisdictions, there is no such thing as absolute testamentary freedom. There are four significant areas which place a check on absolute testamentary freedom.
- Firstly, a testator must, subject to certain exceptions, be 19 years old before he or she has the legal capacity to make an enforceable Will.
- Secondly, a testator must understand the nature of his acts; the extent of his property; appreciate the claims of those around him and must not be suffering from a "disorder of the mind that shall poison his affections, pervert his sense of right or prevent the exercise of natural faculties."
- Thirdly, are the principles prohibiting undue influence. While falling short of incapacity, undue influence can be invoked when the testator is vulnerable and dependent and where it can be shown that the beneficiary has taken advantage of a position of authority or influence.
- Finally, the most common challenge to a Will today is under the Wills Variation Act, a B.C. Statute.
- The Act allows a spouse and child and only a spouse and child to vary the terms of a Will when the testator has not made adequate provision for the proper maintenance and support of the surviving spouse and children.
- The Court has considerable discretion to make an Order that it considers adequate, just and equitable to ensure that a testator discharges his or her moral duty.
- The Supreme Court of Canada has rejected a narrow needs-based test such that even adult, self-supporting wealthy children are able to apply to vary a Will but the extent of same will be subject to a consideration of numerous factors.
- These factors include the size of the estate; the standard of living of those involved in the case; how the testator was cared for; misconduct or estrangement by the children; contributions to the Estate; health of those involved, etc.
- The Court will give recognition firstly to legal obligations and thereafter, attempt to prioritize competing moral obligations. Effectively, testators should know that children cannot be disinherited except for absolutely clear cause.
- Because of the expensive and potentially traumatic nature of this kind of litigation, lawyers are attempting to promote alternative dispute resolutions such as mediation over the courtroom.
- Experienced counsel should play a key role in advising as to which procedure is most likely to resolve the conflict in the most expeditious manner while at the same time obtaining the best possible result.
- Increasingly there is another factor thrown into the mix which can complicate matters. An increasing number of Wills will be seen to be dependent upon traditional patriarchal values which treat female members of the family inequitably.
- While there is no clear court pronouncement on this issue, it is the author's view that any gift made primarily based upon gender should be considered an irrelevant consideration which a Court is required to ignore.
The foregoing is an Executive Summary of a discussion paper on inheritance rights in British Columbia. This document and the lengthier paper it intends to summarize is necessarily of a general nature. Neither this Executive Summary nor the paper should be regarded as legal advice nor relied upon for that purpose. Mark S. Weintraub, would be pleased to consult with you regarding any issues related to Estate matters.
