What happens when a beneficiary is criminally responsible for the deceased’s death?

In the Fenotti Estate case, Chief Justice Hinkson considered a thought-provoking (and troubling) issue:  what occurs when a beneficiary of a deceased’s estate was criminally responsible for the deceased’s death?

In this case, the deceased did not leave a Will.  As a result, the deceased’s estate (the “Estate”) would pass on intestacy to the deceased’s four children.  However, one of the deceased’s children had pled guilty to the deceased’s murder.  The administrator of the Estate asked the Court for directions regarding the portion of the Estate that was supposed to pass to that child.

Chief Justice Hinkson held that the law precludes a person from benefiting from his or her own crime.  Therefore, the child was not entitled to receive a portion of the Estate.  As a matter of public policy, this conclusion makes perfect sense to the author.

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Court clarifies WESA notice requirement

Since BC’s Wills, Estates and Succession Act (WESA) and accompanying Supreme Court Probate Rules came into force on March 31, we have been working with our counterparts in the Probate Registry to clarify some of the new procedural requirements. One of the things we have puzzled over, relating to the timing of the beneficiary notice, has been clarified by a recent court decision.

Rule 25-2 requires notice of an intended estate grant application in Form P1 to be sent to beneficiaries, next of kin, and sometimes others, “at least 21 days before submitting for filing” the application materials. When the application materials are submitted, they must include an affidavit of delivery in Form P9. This affidavit confirms that the notice has been sent as required, but the prescribed form does not require the person making the affidavit to say when they sent the notice.

So when the Registry receives an application, they have confirmation that the notice was given, but they may not be able to tell when. In discussions within our firm we had speculated that perhaps Registry staff would not concern themselves with policing the 21 day rule, and it would instead be on the “honor system”.

However, Master Caldwell has clarified in the Davies Estate decision that the registrar must be satisfied that the 21 day notice period has passed. As a result of this decision, we are changing our practice to modify the Form P9 affidavit to include the date of mailing (variations to the prescribed forms are permitted under Rule 22-3(1)).

As an aside, I am less than thrilled with the impact of the 21 day notice requirement on the estate administration process. The underlying rationale – to give interested parties a reasonable period to respond before an application is processed – is sound. But since volume of applications prevents Probate Registry staff from reviewing most applications within 21 days in any event (the Vancouver Registry currently has a 3 month backlog), an additional 3 week wait before submitting seems an unnecessary further delay. It would make more sense if the Rules allowed the application to be submitted immediately but prohibited the Registry from issuing the grant until 21 days after the notice date. I hope that the Government will consider changing this rule in the future.

Court Upholds Effective Disinheritence

The British Columbia Supreme Court recently refused to vary a mother’s Will that left only a token $10,000 to an estranged son.  In Brown v. Pearce Estate, the challenged Will read in part:

“I wish to leave no more than the $10,000 referred to above to my estranged son…Although I have sacrificed for him and I have supported him over the years, he has refused any contact with me, and…he has made it clear that he wants no further relationship with me.”

The son asked the Court to vary the Will, claiming that the mother owed him a moral duty to provide more than the $10,000 gift.  The Court considered the facts carefully, and declined to order a variation. 

In his reasons for judgement, the learned Mr. Justice Kent noted that in a claim under the Wills Variation Act, an estrangement may either negate or enhance the moral obligation of a parent to provide for a child, depending on the circumstances.

In the circumstances of this case, the Court “found as a fact that it was the plaintiff and not his mother who created and perpetuated the estrangement” between them.  In particular, the Court noted:

  • The plaintiff gave evidence of his childhood, detailing neglect and verbal and physical abuse.  This conflicted with other statements he had made prior to the trial, including a loving note declaring his parents to be “perfection” and “role models” for him.
  • The plaintiff’s reason for not contacting his mother from 1995 through to her death in 2012 was that he claimed he did not know her phone number or address.  The Court did not accept this as a reasonable explanation on the facts.
  • The plaintiff’s son saw the deceased regularly, through the plaintiff’s ex-wife.  The plaintiff’s son and ex-wife clearly had the deceased’s contact information.
  • The ex-wife had told the plaintiff that the deceased wished to have contact with him, but the plaintiff refused to contact the deceased.

The Court therefore concluded that the deceased’s reasons for disinheriting her son were valid and rational, and demonstrated on the evidence.  The Court upheld the Will.

While denying a variation, this case does not change the interpretation or application of the principles underlying the Wills Variation Act.  Indeed, it  is established law that a testator is within their rights to effectively exclude an adult child if the facts demonstrate that the estrangement and lack of contact was attributable to the child, and not to the parent.

This case was decided under the Wills Variation Act because it was commenced before WESA came into force.  However, given that the relevant provisions in WESA are largely the same, we can expect similar considerations in assessing the reasons for an effective disinheritence under the new legislation.