B.C. court rules against will that left out daughters

[JLM]

To summarize on the subject I have the following to say
1.Praxius' take on it is pretty much right on.

2. The law in Canada is lacking in many aspects (woman is walking the streets after killing a child while impaired, Olson is still getting regular parole hearings) so I don't think this ruling is by any means beyond question

3. The father was an arch a$$hole.

4. This case can set a dangerous precedent.

5. I agree with Carrie and possibly one other daughter getting compensation but mainly because if they don't the taxpayers may end up contributing to their support.

6. The daughters should have gone after the old pr*ck while he was still alive. Carrie would have had grounds for recovering support denied from age 15- 19.

7. Make sure you square things up with family before you die.

This whole thing is a very slippery slope.

 

[TenPenny]

Last I checked.... I don't have to treat a god damn person fairly when it comes to my own property......

No, you don't. But once you're dead, it's not your property any more, because you're dead.

So make sure you dispose of it all before you die, then you don't have to worry.

I believe that people should pretty much do as they want to with their estates, I've been involved in a couple that were quite honestly unfair, but the people involved knew that that's what the deceased wanted, so just wrote it off to life with an asshole.

 

[Kreskin]

According to the court docs he treated his daughters like crap and got off on controlling women in his life. It appears his intent was to do so from the grave as well. It wasn't their fault they were his daughters. Who knows what opportunities were missed in life while having to do things like wash his feet.

These angry will-writing nutjobs drive me crazy. They don't spend the damn stuff when they're alive then tell everyone how to spend it when they're dead. Quite often the wills are written once they're half demented, or they are motivated to write them after some one-off dumb event occurred, like daughter forgot to call on their birthday. Control freaks like him want everyone kissing his ass all life and will penalize those who don't go along with it.

 

[TenPenny]

One of the more interesting parts is that the son claimed the guns were a gift from his father while he was alive, yet the son listed the guns as part of the estate when he filled out the paperwork.

The son aint very smart, but then again, he was a coddled spoiled brat, if you read the information.

 

[JLM]

The court has no liberty to ignore the law JLM. Acts of Parliament that are constitutionally valid supersede the opinion of a judge. That's the way our system works.

The fault lies with whomever drafted the will.

What does the law say about the way a guy makes out a will?

 

[wulfie68]

Nope. The only thing I'm an expert at is searching out the facts before I shoot my mouth off.

There is a law in BC. One can argue the pros and cons of the law or one can criticize the judge for enforcing it. I choose to do the former. Are you game?

Well if the one property was in Saskabush, why is BC law what is upheld as opposed to Saskatchewan's? I'm not sure if there IS any difference but if there is that alone could be grounds for an appeal.

And while a lot is being made of the ALLEGATIONS that he was a cranky, control freak of an old bastard, why is this all being taken as gospel by the court? It seems largely irrelevant to me, especially in dealing with 4 women who are above the age of majority, who also never chose to take any prior legal action, criminal or civil. Its essentially the word of the disinherited daughters vs the dead man.

I have to admit I am shocked, not that the piece of legislation dealing with variances in wills exists, but rather how the courts, through sucessive rulings have twisted it. I think there needs to be protection for dependants but anything after that should be entirely the prerogative of the deceased. Among other things, these rulings appear to mean that a child who turns their back on their family has grounds to contest a will that ignores them, just because they are in a less comfortable position, financially, regardless of the cause. I do think this ruling is a travesty: it makes a complete mockery of the notion that we have property rights in this country, when clearly the court has the ability and willingness to overrule the will of property owners so completely.

I also wonder if in deliberations, Judge Wong took into account other possible inheritances for the grandchildren and their educations, when he deemed them to be part of his criteria for judging who was needy and who wasn't...

 

[Cannuck]

Among other things, these rulings appear to mean that a child who turns their back on their family has grounds to contest a will that ignores them, just because they are in a less comfortable position, financially, regardless of the cause.

The smart thing (and a good lawyer will tell you so) to do if you are going to purposefully exclude somebody from a will, is to give a reason. In the litigious world we live in, it doesn't mean they can't fight it but it does make it significantly more difficult.

I do think this ruling is a travesty: it makes a complete mockery of the notion that we have property rights in this country, when clearly the court has the ability and willingness to overrule the will of property owners so completely.

He had no rights the moment he kicked the bucket. One of the good thing about this case is that people might be more likely to dot their i's and cross their t's before they kick off.

 

[JLM]

What we have to remember is this is ONE judge's interpretation, and might differ greatly from what other judges may decide. I saw a flaw right off the bat- the sister that is relatively destitute got 1% more than the sister who wasn't and only 3% more than another one who is relatively affluent.

 

[Tonington]

What does the law say about the way a guy makes out a will?

Read the decision. I'll even post it again:
2010 BCSC 1678 Werbenuk v. Werbenuk Estate

In fact my first post answers your question, it's in section 2 of the Wills Variation Act.

 

[JLM]

"Despite any law or statute to the contrary, if a Testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the Testator’s spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the Testator’s estate for the spouse or children."
Sorry Tonington that just doesn't fly. You might be able to debate some people like they are abject idiots, but that doesn't work with me. The contestants of the will we're all at least 25 years beyond being children. The jerk at that stage had no obligation to provide for them. I agree he wasn't a nice person, but that is beside the point.

 

[Tonington]

Sorry Tonington that just doesn't fly. You might be able to debate some people like they are abject idiots, but that doesn't work with me.

Not abject...

The contestants of the will we're all at least 25 years beyond being children.

Your children will always be your children. If you read a little further through the Act they actually specify minor children...

The jerk at that stage had no obligation to provide for them.

An opinion not shared by courts across the country...not just BC.

 

[TenPenny]

"Despite any law or statute to the contrary, if a Testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the Testator’s spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the Testator’s estate for the spouse or children."
Sorry Tonington that just doesn't fly. You might be able to debate some people like they are abject idiots, but that doesn't work with me. The contestants of the will we're all at least 25 years beyond being children. The jerk at that stage had no obligation to provide for them. I agree he wasn't a nice person, but that is beside the point.

Do I take your argument to mean that once your offspring reach 25 years of age, they are no longer your children? How do you refer to them?

 

[JLM]

Do I take your argument to mean that once your offspring reach 25 years of age, they are no longer your children? How do you refer to them?

We're not talking about how we refer to them, an official document uses the official definition for its terminology. How would I refer to them:? Kids..............offspring.................scions...........descendents..............issue............take your pick. You are not trying to be a dummy too, are you T.P.?

 

[Tonington]

We're not talking about how we refer to them, an official document uses the official definition for its terminology.

In the document it refers to "children" as beneficiaries, and it also refers later to "minor children." So, a 35 year old son and a 32 year old daughter would be your children, a 12 year old son and an 11 year old daughter are minors, and they're your children...

Comprende?

 

[TenPenny]

We're not talking about how we refer to them, an official document uses the official definition for its terminology. How would I refer to them:? Kids..............offspring.................scions...........descendents..............issue............take your pick. You are not trying to be a dummy too, are you T.P.?

No, I was trying to make the point that 'children' is a legally valid term to mean 'offspring'. It has nothing to do with the ages of those offspring.

You are not trying to be a dummy, are you?

As I've said before, a good lawyer is very useful, especially when people willfully misunderstand legal terms, they get themselves into all kinds of trouble.

 

[JLM]

In the document it refers to "children" as beneficiaries, and it also refers later to "minor children." So, a 35 year old son and a 32 year old daughter would be your children, a 12 year old son and an 11 year old daughter are minors, and they're your children...

Comprende?

You can interpret it anyway you want and although we have to accept it's a done deal in the courts, intelligent people recognize it's bullsh*t that wasn't done properly. That is nothing new in our justice system and it's contrary to Turdeau's Charter where he gives the A$$holes all the rights and yet this particular A$$hole is deprived of his rights and worse yet posthumously. :lol:

 

[Tonington]

You can interpret it anyway you want...

You don't get it, it's not my interpretation, it's the interpretation of the courts. Here's a very relevant quote from Chief Justice Brian Dickson of the Canadian Supreme Court:

Both in common parlance and as a legal concept the term “child” has two primary meanings. One refers to chronological age and is the converse of the term “adult”; the other refers to lineage and is the reciprocal of the term “parent”. A child in the first sense was defined at common law as a person under the age of fourteen. This definition may be modified by statutory provision: see, for example, the Child Welfare Act, R.S.O. 1980, c. 66, s. 19(1); the Children s Institutions Act, R.S.O. 1980, c. 67, s. 1(c) and the Children’s Residential Services Act, R.S.O. 1980, c. 71, s. 1(b). No statutory modification, however, fixes an age higher than the age of majority which, in Ontario, pursuant to the Age of Majority and Accountability Act, R.S.O. 1980, c. 7, s. 1(1), is 18 years. A child in the second sense was defined at common law as the legitimate offspring of a parent, but in most jurisdictions this definition has been amended by statute to constitute all offspring, whether legitimate or not, as the “children” of their natural or adoptive parents: see, for example, the Children’s Law Reform Act, R.S.O. 1980, c. 68, s. 1.

source:CanLII - 1984 CanLII 77 (S.C.C.)

In legalese, children specifies the relationship...if you read the rest of the court decision instead of cherry picking a word that you can argue semantically for something that is very clearly defined in legal terms, we wouldn't be wasting bits and bytes here...

 

[JLM]

Official definition of child (children)

child (ch

ld)
n. pl. chil·dren (ch

l

dr

n) 1. a. A person between birth and puberty.
b. A person who has not attained maturity or the age of legal majority.

2. a. An unborn infant; a fetus.
b. An infant; a baby.

3. One who is childish or immature.
4. A son or daughter; an offspring.
5. A member of a tribe; descendant: children of Abraham.
6. a. An individual regarded as strongly affected by another or by a specified time, place, or circumstance: a child of nature; a child of the Sixties.
b. A product or result of something specified: "Times Square is a child of the 20th century" (Richard F. Shepard).

So the definition you want to go with is the 4th listed- pretty shaky for a legal document I'd say.:lol:

 

[wulfie68]

Official definition of child (children)

child (ch

ld)
n. pl. chil·dren (ch

l

dr

n) 1. a. A person between birth and puberty.
b. A person who has not attained maturity or the age of legal majority.

2. a. An unborn infant; a fetus.
b. An infant; a baby.

3. One who is childish or immature.
4. A son or daughter; an offspring.
5. A member of a tribe; descendant: children of Abraham.
6. a. An individual regarded as strongly affected by another or by a specified time, place, or circumstance: a child of nature; a child of the Sixties.
b. A product or result of something specified: "Times Square is a child of the 20th century" (Richard F. Shepard).

So the definition you want to go with is the 4th listed- pretty shaky for a legal document I'd say.:lol:

In fairness, its not just the courts. My mother once told me that no matter how old I got, to her I would always be her little boy...

 

[TenPenny]

Official definition of child (children)

child (ch

ld)
n. pl. chil·dren (ch

l

dr

n) 1. a. A person between birth and puberty.
b. A person who has not attained maturity or the age of legal majority.

2. a. An unborn infant; a fetus.
b. An infant; a baby.

3. One who is childish or immature.
4. A son or daughter; an offspring.
5. A member of a tribe; descendant: children of Abraham.
6. a. An individual regarded as strongly affected by another or by a specified time, place, or circumstance: a child of nature; a child of the Sixties.
b. A product or result of something specified: "Times Square is a child of the 20th century" (Richard F. Shepard).

So the definition you want to go with is the 4th listed- pretty shaky for a legal document I'd say.:lol:

When I need a lawyer, I know who not to call.