By Patrick McMurchy
Estate litigation has changed dramatically over the past few years, reflecting changes in our society.
Many of the changes acknowledge we now live in a less legally formalized society.
In B.C., until very recently, wills were only effective if they met required strict compliance with formalities set out in the Wills Act, formalities that go far back into history.
Today the courts can give effect to “will like” documents that fall short of the formalities.
In common with other areas of law, estate law has incorporated changing attitudes towards formalized vs. common law marriages and same sex relationships.
Often, a crucial question in estate litigation is: Is there a surviving spouse? This used to be determined by a marriage certificate or a divorce certificate. With so many couples no longer being formally married the question may now yield surprising answers including that there may be more than one surviving spouse.
As with so many other aspects of our lives, estate litigation has changed to deal with issues of an aging population.
A problem that has emerged has been one brought about by the rise in the number of second marriages where one spouse lives many years after their first spouse has passed away and marries for a second time in their golden years.
Traditionally, a spouse would leave everything to their survivor spouse, and when that spouse died the estate would go to their children.
Following that tradition, the second spouse would inherit all, and on their death the estate would go to their children. Children of the first marriage would receive nothing, even though it may have been their parents who acquired the estate assets.
There are a number of court decisions in the past few years dealing with this situation which must balance consideration for the children of the first marriage with the needs and expectations of the second spouse.
Another change has brought challenges to a long-standing legal principle.
The long-standing legal principle is that where property is held in joint ownership, if one of the owners passes away, the other owner takes 100% of the property by right of survivorship and the property would not be part of the estate to be distributed. That intent was presumed.
The challenge to this long-standing principle came because many elderly parents create joint bank accounts with one of their children so that the child could conveniently manage the elder parent’s financial affairs.
To resolve the problem, the law has changed to open up an inquiry into the parent’s true intention: was it to give all to the surviving child, or was it just to have them manage the account.
Also, along with the rise in the number of elderly people, the sad facts are there is also a rise in the frailties of age, such as a diminished mental capacity including the onset of dementia. Physical and mental frailties often lead to isolation and dependence of the elderly. These realities are reflected in an increasing number of estate litigation cases centring on issues of the capacity to make wills or make gifts and undue influence.
Another major change in society affecting estate litigation is the changing role of families.
Traditionally, a family would remain together in the same community throughout their lifetimes. Today, some of a parent’s children are often thousands of miles away.
This can lead to a situation where the elderly parent comes to rely on one child much more than another. The parent’s gratitude may be shown by making gifts during the parent’s lifetime to the caring child or preferring the caring child in their will. In extreme cases, the situation can even lead to estrangement between the distant child and the parent.
A further complication can be where a non-family member provides care and companionship to the parent over the course of years, and, as a result, may be preferred over the absent children in a will.
Very recently, a trial judge spoke of a cautionary tale in contemporary B.C. The trial judge found a deceased parent had become estranged from two of their children. The root cause of the estrangement was the parent’s attempts to help the children come up with the funds necessary to purchase a home on their own in the Lower Mainland.
This recent case serves as a reminder that estate litigation reflects changes in our society. This is particularly true in wills variation cases, where variations are to be measured by contemporary community standards.
This short article is intended to give the reader a general understanding of some of the basic principles respecting the changing law. It is not intended as legal advice. In estate litigation outcomes very much depend on the specific facts of each case.