Mirror and Mutual Wills

Estate planning is a complicated process, and it takes a lot of work to ensure that everyone you care about is provided for. Two mechanisms that can be used are Mirror Wills and Mutual Wills.

Mirror Wills create identical provisions in multiple wills and are usually used by spouses. For example, each will could leave everything to the other spouse with a gift over to their children in case the other spouse passes away before the estate is distributed. This method gives the surviving spouse complete control and ownership over the property, and that spouse may change their will after the other’s death if they wish.

A Mutual Will is similar to a Mirror Will in that the provisions in each will mirror the other. It is different because Mutual Wills cannot be changed except as agreed upon. When Mutual Wills are created, both parties agree not to revoke or change their wills, except as provided by that agreement, including after the other’s death. This type of restriction is most often used with blended families, when one or both spouses have children from previous relationships. In those situations, Mutual Wills can be a good way to ensure that if you predecease your spouse that your children will still be provided for.

Problems arise when it is not absolutely clear whether or not two people intended to create Mutual Wills. If there is doubt, Courts generally do not want to interfere with a survivor’s freedom to change or create a new will. This was exactly what happened in Dolby v DeSantis Estate[1989] B.C.J. No. 297 (BC SC). Mr. Dolby and Mrs. DeSantis created identical wills. The wills gave all property to the other spouse, and Mr. Dolby’s children would receive all of the property if they both passed away. After Mr. Dolby’s death, Mrs. DeSantis changed her will and left all of the property to her side of the family. When Mr. Dolby’s children sued Mrs. DeSantis, the Court found that there was no evidence that Mrs. DeSantis ever intended for the first will to be a Mutual Will, and she was free to change her will at any time before her death. The fact that Mr. Dolby and Mrs. DeSantis signed identical wills at the same time did not prove that the wills were Mutual Wills. In order to prove that wills are Mutual Wills, not Mirror Wills, it must be proven that the parties agreed not to revoke the will or to be bound by its provisions in making any subsequent will.

Creating a will is a significant life event that needs to be attended to with the proper diligence and care. If you would like to create your first will or have any questions regarding your existing will please contact Heath Law LLP at 250-753-2202.

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Medical Assistance in Dying

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Ever since 2015, when the Supreme Court of Canada decided in Carter v Canada (Attorney General) that a prohibition on physician-assisted suicide was unconstitutional, Canada has had to redefine what end of life care means and what rights individuals have at this time. This is an ongoing process that will likely continue for many years.

The Supreme Court declared that it violated an individual’s rights to life, liberty, and security of the person to be denied medical assistance in dying (“MAiD”) if the person consents, and if they had a grievous and irremediable medical condition that causes enduring and intolerable suffering. In response to Carter, the federal government passed a law that allowed an individual to receive MAiD, but only if they met the conditions in Carter and if their natural death had become reasonably foreseeable.

The new law has been the subject of another constitutional challenge by the BC Civil Liberties Association, which was one of the plaintiffs in the Carter decision in 2015. They argue that the current law is overly restrictive, and that it excludes people with multiple sclerosis, Huntington’s disease, and Parkinson’s disease that should be allowed to have access to MAiD.

The discussion around MAiD continues in the courts, Parliament, legislatures, and in our homes. If you or a loved one is considering MAiD, be sure to research and understand the legal and personal implications of this important decision.

If you need legal advice on medical assistance in dying, end of life planning, or any other law related inquiry, please contact us.

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What is needed for a Valid Will

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Not every attempt to make a valid Will is successful. The Wills Estates and Succession Act (WESA) of British Columbia has certain requirements that must be established and proven if the Will is to be deemed valid.

There is an age requirement that is designated by s. 36 of the WESA. S. 36 states that a person who is 16 years or older and is mentally capable may make a Will. A Will that is made by someone under 16 is therefore presumptively invalid.

There are other somewhat more technical requirements needed to make a valid Will found in s. 37 of the WESA. For a Will to be valid it must be (a) in writing, (b) signed at its end by the Will-maker or the signature at the end must be acknowledged by the Will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and (c) signed by 2 or more of the witnesses in the presence of the Will-maker. S. 40 of the WESA provides the age requirements for witnesses to a Will. Signing witnesses to a Will must be 19 years of age or older.

Once the technical requirements for making a Will are met there are also limitations to the type of property that can be gifted in a Will. S. 41 of WESA states that a person may by Will, make a gift of property to which he or she is entitled at law or in equity at the time of his or her death, including property acquired before, on or after the date the Will is made. This effectively means that one is only able to gift property that the Will-maker actually has or is entitled to.

Creating a Will is a significant life event that needs to be attended to with the proper diligence and care. If you would like to create your first Will or have any questions regarding your existing Will please contact Heath Law LLP at 250-753-2202.

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Estate Litigation & Wills – Problems if Provisions are Unclear

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A Will that contains unclear provisions may be found to be invalid or the particular gifts that are the subject of the unclear provisions may fail. People attempting to write their own Wills may be unaware that the Will is unclear. However, there may be more than one possible interpretation that the Will-maker did not anticipate which may make the provision seem unclear.

If a gift is unclear, a Court may be asked to interpret the Will to determine the Will-maker’s true intention. This will result in significant legal expenses for the Estate and the Court may not be able to determine the Will-maker’s true intent. An unclear Will may result in an intestacy (i.e., when a person dies without having a Will) which, in turn, could result in an unintended person receiving a gift or benefit by virtue of the default provisions of the British Columbia Wills, Estate, and Succession Act (WESA).

“Fixing” Ambiguities in a Will

Just because a Will contains an unclear provision, does not necessarily mean that the Will will be found to be invalid or that the gift containing the unclear provision must fail. Under WESA, there are provisions that can cure certain errors contained in a Will. However, these provisions cannot fix a Will where the Will-maker did not have the required mental capacity or the Will-maker was unduly influenced when making the Will.

Under WESA, a Will that is not in a typically acceptable form may be found to be valid if the Court determines that the Will represents the intentions of the deceased person. For example, the Court may consider whether a journal/diary entry represents the testamentary intention of the deceased.

Alternatively, a Court may also be able to fix an error in a Will if it appears that there is uncertainty because of a simple mistake made by the Will-maker or the person who drafted the Will or because the person who drafted the Will misunderstood the Will-maker’s intention. In these circumstances, the court may choose to look to evidence of the Will-maker’s intention to determine what his or her true intention was regarding the unclear provision. An application to fix an error contained in a Will must generally be made within 180 days of probate being granted.

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Estate Litigation – Ownership of Assets on Death

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Many people own a home or other assets with their spouse or another person. One should consider what will happen to the property when the other owner dies. In some cases this may lead to litigation.

Types of Ownership

When a property is owned by more than one person, it can be owned as a tenancy in common or as a joint tenancy. The main difference between these two types of ownership is what happens when one of the owners dies.

In a tenancy in common each person owns an undivided interest in the asset. Therefore, if people own an asset as tenants in common and one of the owner’s dies, his or her interest passes to his or her estate. If the asset is held by the estate, the deceased owner’s interest in the property will be distributed according to that person’s will or according to the laws of intestacy (when a person dies without a will)

If an asset is owned in joint tenancy, the right of survivorship applies which means that on death, the deceased’s person’s interest in the asset automatically passes to the surviving owner.

As people often do not think about how their assets are owned, the owners’ intention when they purchased the asset as to the type or form of ownership may not be obvious.

The Owner’s Intention

Where the deceased owner’s intention is unclear, litigation may result to determine what the owner intended and who will receive the asset. If the other owner is claiming that the asset is held in joint tenancy, the beneficiaries under the will or the deceased’s next of kin who would inherit under intestacy may dispute the type of ownership.

Estate litigation may help determine the deceased’s intent when he or she purchased the asset or when he or she gave the other owner an interest in the asset. Unless there is evidence to the contrary, the law presumes that when two people own land, they own the land as tenants in common. However, if there is clear evidence that the deceased person intended to own the asset in joint tenancy and intended to give his or her interest to the other owner on his or her death by right of survivorship, the transfer will be valid and the property will remain with the surviving joint tenant. If it does not appear that the deceased person intended to give the other owner the right of survivorship, a Court may determine that a resulting trust applies and that the other owner holds the deceased’s person’s interest in trust for his or her estate.

Ending a Joint Tenancy

One of the owners who wishes to end the joint tenancy and prevent the right of survivorship from becoming effective on death, may sever the joint tenancy on his or her own. Once an owner severs a joint tenancy, the ownership of the property transfers to a tenancy in common.

An owner may sever a joint tenancy:

  • by registering a transfer of the property at the Land Titles Office to him or herself;
  • by reaching a written agreement with the other owner; or
  • inadvertently, where the surrounding circumstances suggest that the ownership has been severed. For example, a joint tenancy may be severed if a couple divorces.

 

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Estate Litigation – Varying the Will in Favour of a Spouse

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Wills Variation: Unger v Unger Estate, 2017 BCSC 1946

In British Columbia, a person has an obligation to provide for his or her spouse and children in his or her Will. If a deceased person did not provide sufficiently for a spouse or any children, the spouse or the children can make an application to vary the deceased’s Will to receive a fair portion of the deceased’s estate. In deciding whether to vary a Will, a Court will weigh the will-maker’s wishes within the Will against his or her moral and legal obligations to his or her spouse and children. A Court will generally give more weight to the will-maker’s obligations to his or her spouse and children than to the will-maker’s wishes within his or her Will.

Unger v Unger Estate

In the recent case of Unger v Unger Estate, the British Columbia Supreme Court considered an estate litigation case in which a wife brought an application to vary her deceased husband’s Will. After 12 years of marriage, the Plaintiff and the deceased separated and a Court declared that the couple was legally separated. At the time of separation, the couple owned a home which was registered in joint names. As a result of the legal separation, the joint tenancy was severed leaving each person with half the home. However, after several months, the couple reconciled and were together until the husband’s death. The couple were together for approximately 34 years total.

The Will

In his Will, the deceased left the majority of his estate to his four children from a previous marriage. In the Will, the husband stated that he was not leaving anything to the Plaintiff under the Will because, when the couple separated, half of the family home was transferred to the Plaintiff.

The Court’s Decision

The Court considered the length of the couple’s relationship and the circumstances of their relationship and held that the deceased had an obligation to provide for his wife under his Will. The Court determined that, although the Plaintiff had received half of the matrimonial home by virtue of the separation, this did not satisfy the deceased’s moral and legal obligations to his wife. The Court ordered that the residue of the estate be divided in the following manner:

  • 30% to the Plaintiff; and
  • 70% to be divided between the deceased’s four children.

 

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Estate Litigation – Coping With an Unfair Will

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Sometimes a loved one who passes away does not provide proper financial support for certain people under his or her Will. For example, a parent may provide unequally for his or her children or may fail to adequately care for a dependent individual suffering from a mental or physical disability. This may leave those who relied on the deceased during his or her life without proper support. Although a person can generally dispose of his or her property on death as he or she wishes, there are certain obligations that a will-maker has to those who may rely on him or her for support. If a will-maker does not provide for these people, there may be a way to apply to Court to vary or change the unfair Will.

Who Can Vary a Will?

Certain family members who were excluded altogether or not fairly provided for in a Will can make an application to vary a deceased person’s Will.  Under the British Columbia Wills, Estates and Succession Act, only a spouse or a child of the deceased can make an application to vary a deceased person’s Will. Under WESA, “spouse” means a person who either was, at the time of death, married to the deceased or living with the deceased in a marriage-like relationship for at least two years.

Considerations in Varying a Will  

There are time restrictions to when an applicant can apply vary a Will and certain factors that may affect an applicant’s ability to successfully vary a Will. For example, an applicant must commence a Court action to vary a Will within 180 days from the date that a Court issued a grant of probate or administration.

A Court will consider the will-maker’s reasons for not providing, or not adequately providing for, the person seeking to vary the Will. For example, the will-maker’s obligations on death may be less if a child refused, without legitimate reason, to have a relationship with his or her parent. The Court will also consider whether the will-maker chose to make gifts to this person during the will-maker’s life instead of within his or her Will.

There are also circumstances in which the will-maker’s obligation to his or her spouse or children will be greater. For example, a will-maker will have a greater responsibility to a disabled spouse or child. The financial need of the person seeking to vary the Will may also affect the will-maker’s responsibility to the applicant.

 

For any further questions regarding unfair Wills or to schedule an appointment with a litigation lawyer, click here.

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Challenging a Will? Estate Litigation

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If you are a beneficiary or an executor under a Will, you may have to deal with a Will that is being challenged or, if you are a beneficiary or a potential beneficiary, you may be in a position to challenge a Will. A beneficiary or a potential beneficiary may challenge a Will where he or she claims that the Will is invalid. There are a number of factors that must be met in order for a Will to be valid, the absence of which will leave a Will vulnerable to a challenge.

Legal Requirements

A Will may be invalid if the will-maker did not satisfy the formal legal requirements. For example, in order for a Will to be valid, generally, two people must witness the will-maker’s signature. However, in certain cases, even if a Will does not meet the formal requirements, a court may determine that the Will is still valid.

Mental Capacity

A person may also challenge a Will on the grounds that it is invalid if, when the will-maker made the Will, he or she did not have the required mental capacity to make a Will. In order to have the required mental capacity, the will-maker must understand what he or she is doing and must not be suffering from any disorder or illness that affects mental capacity. For example, a person will not have the required mental capacity to make a Will if he or she is suffering from dementia when he or she makes the Will.

Knowledge and Approval of the Will’s Contents

Although a person may have the mental capacity to make a Will, the Will may still fail to reflect the will-maker’s wishes. A will-maker must understand what the Will is intending to do such that it reflects his or her true intentions. Additionally, a Will may not meet the requirement that the will-maker knows and approves of the contents of a Will if someone else improperly influenced the will-maker. For example, a person who threatens to stop taking care of a person unless the will-maker leaves him or her something in the Will has improperly influenced the will-maker.

What Happens if the Will is Successfully Challenged?

If a court finds a Will to be invalid, the court may look to a previous Will to determine how the deceased’s estate will be distributed. If there is no previous Will that is valid, the estate will be distributed according to the law of intestacy. Intestacy means that the deceased’s family members will inherit from the deceased based on the order set out in the British Columbia Wills, Estates and Succession Act.

If you need legal advice on this subject or any other law related inquiry please contact us.

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