Successful Cases

2023

• Thompson (Re), 2023 BCSC 1591

  This case was about removing an executor who is in a conflict of interest with the administration of the estate.

  The deceased mother was survived by six children who were named as equal beneficiaries to her estate. Two of the siblings were named co-executors under the will, with one of them eventually renouncing his executorship due to a conflict of interest.

  We were recently successful in an application put forth by our client and her sister to remove the remaining executrix as a result of her disqualifying conflict of interest and inability to act in the best interests of all beneficiaries.

  This case involved a complicated and acrimonious family history, with severe mistrust in place between the siblings. Prior to the passing of the mother, her estate was being managed by Solus trust as a result of a previous court order. The executrix and 3 other siblings then commenced an action attempting to subvert Solus’ authority and power to sell the estate property.

  A certificate of pending litigation was placed on the property and our client and her sister were named defendants in that action, along with Solus. This action was later abandoned but not discontinued or withdrawn.

  We argued that the executrix was a in a disqualifying conflict of interest because if she discontinued the action, she would be under a duty to recover costs from herself and her co-plaintiffs.

  Justice Girn agreed, writing:

  [56] I conclude that by commencing actions against the Estate, Gail could be liable to pay for costs to the Estate. This puts Gail in a disabling conflict of interest.

  There is no way to get around this conflict of interest.

  We also argued that the executrix’s position with respect to unpaid rent from one of the siblings demonstrated her bias towards that particular beneficiary. Again, the Court agreed with our position:

  [57] As well, Gail’s steadfast position relating to debts owed by Thomas to the Estate have demonstrated that she is not capable of being neutral in order to act in the best interests of all of the beneficiaries and not just Thomas. As executrix of the Estate, she must consider whether rent is owing by Thomas to the Estate. By refusing to even look into this, in my view, Gail’s position endangers the administration of the Estate to the detriment of all of the beneficiaries.

   

  [58] While Gail may believe that Hazel wanted Thomas’ work in maintaining and improving the Dewdney Trunk Property to be compensated, the evidence does not support this and is not consistent with the position of two of the beneficiaries, Susan and Patricia. In particular, the evidence reflects Gail’s strong animosity towards Patricia for her decision to seek Solus’ appointment.

  [59] I note that Hazel’s will is silent on the issue of rent payable by Thomas. She could have considered Thomas’ contribution to the farm but chose not to. Gail

  cannot impose her views of what Hazel’s wishes were in respect of Thomas living on the property and his contributions.

  Removing an executor is never easy. However, this case demonstrates Mussio Goodman’s steadfast commitment to resolving estate matters that involve complicated family dynamics and difficult emotions. Mussio Goodman pays careful attention to detail and employs creative strategies to ensure we develop strong legal arguments while obtaining the best evidence to support them in court.

  read more

2019

• Webber v Sullivan, 2019 BCSC 1522

  This case involved a deceased mother who disinherited her two daughters in favor of her two sons.

  The will left the entire estate to one of the sons, the other having been provided for with a substantial gift before the mother passed away. The estate was valued at $434,000.

  The case dealt with lengthy and difficult family history, with a number of complicating dynamics including allegations of child abuse. The defendant sons denied that our clients were entitled to anything from the estate. The defendants made allegations of estrangement and relied on the deceased’s will that indicated our clients were “uninvolved”.

  At trial we argued that the will did not make adequate provision to our two disinherited clients. Evidence of continued contact with deceased through phone calls and visits was adduced. It was argued that the deceased had not met her moral obligation to provide something for our clients, and there was no credible evidence to suggest that our clients had done anything that would justify the deceased cutting them completely out of the will.

  Madam Justice Horsman agreed, writing:

  [172] Tataryn instructs that, if the size of the estate permits and there are no circumstances negating an obligation, a testator should make some provision for adult children in a will. In the present case, the size of Betty’s estate does permit some provision for the plaintiffs, and I conclude that there are no circumstances which would negate Betty’s moral obligation to the plaintiffs. In particular, the evidence does not establish any wrongful conduct on the part of the plaintiffs, or an estrangement with Betty that would justify their complete disinheritance.

  As a result the will was varied 15% to provide for our clients. This case highlights that even where there is a difficult relationship between child and parent, there are moral obligations on a will-maker to provide for his or her children in the will.

  read more

2016

• Sharma v. Sharma Estate, 2016 BCSC 1397

  This case centered on the Estate our clients’ mother, and her Will that disinherited three children in favour of one son.

  In the Will, the defendant stood to inherit the entire Estate. The Estate was valued at upwards of $2 million and consisted of real estate in Canada as well as Fiji and other sizeable investments.

  At trial, we argued that the Will of the deceased did not make a morally adequate provision for our disinherited clients (Rani and Ranjan). We argued that our clients had not been given any significant assets from their mother during their lifetime, while the defendant brother (Victor) was in receipt of financial support from his mother in the form of rent-free accommodation, a monthly stipend, and payment of various expenses for the duration of his entire adult life when he was not serving time in prison for attempted murder and other serious criminal activities.

  Madam Justice Griffin agreed and accordingly varied the Will ordering 34% of the residue of the Estate to the Deceased’s daughter and 33% to each son.

  [430] Judging Victor by contemporary standards would mean that he should not
  necessarily be disinherited simply because of his criminal activity, as he should be given a chance at rehabilitation. Similarly, the fact that there was some distance between Rani, Ranjan and the Testatrix later in her life can be understood by the circumstances which led to that distance, for which Rani and Ranjan ought not to be unduly criticized.

  [431] Viewed objectively in light of current societal norms, when I compare and
  contrast the circumstances of Rani, Ranjan and Victor, I conclude that each sibling
  is morally deserving of a share of the Testatrix’s estate and that a judicious parent
  would share her estate amongst them.

  This case underscores the fact that there are legal and moral constraints that can affect the binding nature of one’s Last Will and Testament. If you have been disinherited and suspect that the decision was made by way of undue influence, mental incapacity, or believe there are moral reasons why you should still be entitled to a portion of an estate, contact us to review your rights.

  read more
• Ciarniello v. James, 2016 BCSC 1699

  The case involved a BC wills variation claim by the Plaintiff, who was the second wife of a Vancouver dentist and businessman.

  The Plaintiff sued her husband’s estate, claiming that he did not adequately provide for her in his will. The deceased had five children, two with the Plaintiff and three from a previous marriage. The will split the estate equally between his five children but left out the Plaintiff.

  We represented the Defendants, the three children from the first family.

  British Columbia Wills and Estate law is very unique when compared to other jurisdictions, as it features legislation which allows adult children or spouses to apply to the Court to vary the will of a deceased person.

  A Court will overturn a will of a deceased person and vary it with terms it deems to be “just, adequate, or equitable”, if a variety of criteria are met. However, the criteria which warrants variation of a will is routinely a point of contention between the parties, especially when there are millions of dollars at stake.

  The BC wills variation regime often pits family members against each other in lengthy and contested litigation. A particularly common family dynamic in BC wills variation claims involve blended families. Where the deceased has multiple children with different spouses, there is typically an increased possibility for animosity between family members. This age-old problem can lead to some fairly complex litigation.

  The first family disagreed that the deceased’s will ought to be varied in the Plaintiff’s favour, mainly because their father had transferred significant assets to the Plaintiff before his death. Furthermore, they argued that their father relied on complicated tax planning reasons for leaving the Plaintiff out of his will.

  Mr. Justice Sigurdson heard arguments from all the parties over four days of trial. The evidence revealed that the estate was over $11M in total, and that the Plaintiff had been transferred significant assets prior to the death of the Deceased. In spite of this, the Plaintiff argued that she should have received half of the marital assets on the death of the Deceased, as would have been required on a divorce. Furthermore, the Plaintiff argued that she had not been maintained by the deceased to continue a standard of living to which she had grown accustomed.

  On the other hand, we argued on behalf of our clients that the court should give due consideration to the considerable assets already transferred to the Plaintiff, and the taxes paid by the estate for which the Plaintiff was not responsible.

  Of importance, it was revealed through the course of litigation that a company transferred to the Plaintiff before the death of the deceased owed debts of close to $1.5M dollars to the deceased’s estate. This key evidence was uncovered through the discovery process of the litigation by the efforts of the Mussio Goodman team.

  After reviewing all the evidence, Mr. Justice Sigurdson ordered that the will be varied so that the Plaintiff is entitled to 25% of the Estate. In making his decision, Mr. Justice Sigurdson placed a great deal of weight on the fact that without a variation of the will, the Plaintiff would be unable to re-pay the debt to the Estate. So while the Plaintiff will receive an increased share from the estate, the practical consequence is that the she must use her increased share to satisfy the debt owing to the estate.

  read more

2013

• Laszlo v Lawton, 2013 BCSC 305

  This estate litigation action was brought by our clients, the relatives of the deceased, who sought to invalidate her last will and testament. The deceased had drastically altered her last will to leave out all surviving relatives in favour of a religious institution to which she had no affiliation.

  During a ten day trial, we successfully argued that when the deceased executed her final under suspicious circumstances which included mental decline.

  In finding for our clients, the Court invalidated the contested will, thereby reinstating the previous will which named them as beneficiaries of a 1.8 million dollar estate.

  read more

2011

• James v Gillis, 2011 BCSC 826

  In this Family Compensation Act claim, our clients were the surviving partner and parents of a 36 year old mother of three who was killed in a tragic motor vehicle accident.  During a four day trial, the main issues involved whether the Deceased’s common-law partner was entitled to compensation under the Act, as well as an assessment of damages for both him and the Deceased’s parents.

  The judge determined that our client was in fact the Deceased’s common-law partner at the time of death and therefore was entitled to compensation under the Act. He was awarded over $75,000 in compensation for loss of past and future financial support and household services, as well as compensation for loss of inheritance.

  The parents of the Deceased were awarded $20,000 for economic loss and loss of guidance as a result of the untimely death of their daughter.

  read more