Franco v. Franco Estate, 2023 BCSC 1015: Gifts versus a resulting trust

• Case deals with transfer of assets prior to death to an adult, independent child

• Question of whether the transfer is a gift or should it be held in trust by the child for the benefit of the estate

• In order to be a legally binding gift, the donor must have intended to make a gift at the time of transfer, and the donor must have delivered the gift to the donee (completed the gift)

• In this case, the court ultimately decided it was a complete gift

Bush Estate (Re), 2024 BCSC 375: Undue influence

• Case examines the factors that raise a specific and focused suspicion of undue influence in writing a will

• Initial will divided an estate equally between a large number of nieces and nephews, while a second will left only $5,000 to each respondent, with the remainder being left to the executor (a niece)

• In order to prove a will is valid, the propounder must prove the will was executed in compliance with statutory formalities, the will-maker knew and approved of the contents of the will, and that the will-maker had testamentary capacity 

• The court decided there was not enough evidence to rise to the level of suspicious circumstances

Gil v. Gil, 2024 BCSC 526: Dismissing a grant of probate

• Case deals with the circumstances in which probate is dismissed

• Deals with the duties of the executor to ensure notice is given and is proper for a  grant of probate

• Section 121 of WESA sets out that a person applying for a grant of probate has to give notice of the application to the people who are listed

• In this case, the court found that notice was not given because although notice was sent to the house, the executor did not rightfully expect it to be received since the testator’s son was living in Mexico and therefore unlikely to see mail sent to the family address in Canada

Sinitsin Estate, 2024 BCSC 534: Will variation claims

• The deceased party divided her estate between her children and grandchildren

• One of the adult children made a will variation claim, claiming that the distribution did not make adequate provision for his financial needs

• There is no moral obligation to grandchildren

• In will variation claims, the court looks at a number of factors to balance moral obligations with the wishes of the testator

• In this case, the court determined that the deceased had satisfied her moral obligations, and provided for her son over his lifetime

Rawji Estate (Re), 2023 BCSC 1652: Removing an executor

• The court ordered the removal of an executor from his deceased mother’s estate in a case where the relationship between parties was acrimonious

• WESA allows for the removal of a personal representative of the estate if the court considers that they should not continue

• However, pre-existing hostility between an executor and beneficiaries does not necessarily disqualify the executor from performing their duties

• In this case, the court found that the executor should be removed, and selected an independent trust company.

Razafsha v. Heidary, 2022 BCSC 1357: Who is spouse?

• Case centres around a deceased woman who died by suicide and had been living in a same-sex relationship, although they had a separation agreement

• The deceased had no will and her only living relative was her sister

• The court had to determine if the applicant was the spouse of the deceased under WESA, and whether or not the relationship had terminated 

• Under WESA, two people are considered spouses if they were both alive immediately before the relevant time, and they were married to each other or lived with each other in a marriage-like relationship for at least two years

• The court found that this was a spousal relationship, and that the separation agreement was only a financial separation