Blog – Vancouver Lawyers

In part one of this blog, we discussed some of the benefits of summary trials in Estate litigation and their limitations. In the recent decision of Boyd v. Shears 2018 BCSC 194, Mr. Justice Smith was asked to hear a wills variation application under the Wills Estates and Succession Act. In this circumstance all of the parties agreed that will should be varied in favour of the Plaintiff husband but one beneficiary refused to sign the agreement that all the beneficiaries had reached.

Mr. Justice Smith described the arguments against the agreement as follows:

[11] Ms. Shears also says that the solicitor who drafted the will was negligent in failing to determine if the plaintiff was entitled to benefit from the testator’s pension after her death or in failing to advise generally of the requirement to make adequate provision for the plaintiff. Even if she is correct in that allegation, a successful negligence action would only result, after lengthy delay and considerable cost, in a redistribution of the estate along the lines that have been agreed to, if not one more favourable to the plaintiff.

[12] In considering whether a will has made adequate provision for a spouse, the court considers what the spouse would have been entitled to in a notional separation immediately prior to the testator’s death. That notional separation defines the minimum acceptable level of what is adequate, just and equitable: Ciarniello v. James, 2016 BCSC 1699 (CanLII) at paras. 70 and 71.

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[14] Much of Ms. Shears’ affidavit relates to complaints about the conduct of her brother, Mr. Eby, the executor of Ms. Boyd’s estate, and the plaintiff. For example, she alleges that the plaintiff has said that he stayed with her mother only for financial security and that Mr. Eby, as executor, has not communicated with her. These complaints are not substantiated and, however sincerely Ms. Shears may believe them to be true, they are simply not relevant to the legal issue the court must decide.

[15] Ms. Shears also alleges collusion between Mr. Eby and the plaintiff, but it is not clear what they are alleged to be colluding to achieve, other than the variation that has been proposed. I note that this variation would result in Mr. Eby’s share of the estate being reduced to the same extent as that of Ms. Shears.
[16] Ms. Shears also says her mother could have changed her will before her death to provide for her husband, but chose not to. There is no evidence that Ms. Boyd was aware that she was in error in assuming that the plaintiff would receive benefits from her pension. I understand Ms. Shears to be arguing that it was incumbent upon the plaintiff to advise Ms. Boyd of her error in time for her to change the will. There is no legal authority for imposing such a duty on the plaintiff and no evidence that he was aware of the particulars of his wife’s pension plan.

Ultimately the Court rejected these arguments and ordered that the variation occur as proposed by the consenting beneficiaries and the Plaintiff.

[17] I find that the agreement that has been reached among all parties other than Ms. Shears appropriately addresses the will’s admitted failure to make adequate provision for the plaintiff and that the matters raised by Ms. Shears do not provide any legal or factual basis for a different conclusion.

[18] I, therefore, order that the will be varied in the manner set out in paragraphs three and four of the notice of application—that is, removing the $20,000 cash gift to the plaintiff and giving him a 40 per cent share in the residue of Ms. Boyd’s estate, with the remainder divided equally among Kim Barron, Kelly Shears and Grant Eby.

If you wish to challenge a will, or are involved in Estate Litigation, contact the Kushner Law Group today to schedule a consultation.