Male-only inehirtance overturned

[Sliver]

Originally Posted by WilsonFourTwo

I'm curious.....why do you feel that way? What specific reason(s) do you feel that this decision benefits Canada?

If I was one of the daughters, what would I care if it benefits Canada? As an outsider I don't even care if it benefits Canada. I think if the father made an irrational decision and the daughters could prove that, they may be entitled to some compensation, which is exactly what happened.

I'm short on time so I'm not researching this as well as I would like, but didn't the judge say something to the effect of the father didn't take into account how much his life and his wife's life were enriched by the daughters? That's important, as well as the care she gave the father at the end.

Haven't you ever seen a parent totally favour one kid, while mistreating another? I hate that more than anything - I like that this judge righted a wrong (based on my limited understanding of the case).

Originally Posted by WilsonFourTwo

Is it because the judicial system should be in charge of reversing the wrongs caused by crappy parenting?

The courts step into familiy matters all the time and if I was one of the daughters I would have fought it too.

Originally Posted by WilsonFourTwo

Or it it because the judicial system should be the nation's moral compass, and completely ignore personal freedoms in order to correct perceived unfairness?

What country do you live in? Maybe I would like to smoke a big fat bowl after work; however, I'm not "free" to do that legally.

Originally Posted by WilsonFourTwo

It's a completely different story if the daughters were still young dependents, but they're not. They are grown adults, and are responsible for themselves. If the guy was a tyrant (and it appears he was), why would they stick around for 50+ years? I suspect that the kids hung around for the money as much as the old man likely used it to control them.

Maybe, maybe not. We don't know.

Originally Posted by Table 5

What's the whole point of wills then if courts don't respects it?

That's a good point and I think they should in a general sense. But there are always going to be situations where a will can be fairly challenged.

Originally Posted by valo403

Yes, people do contest wills all the time, and barring a failure in the actual creation of the will they are generally shuffled out of court rather quickly. There's a reason for this, it's called freedom of contract. A will is nothing more than a contractual document. A properly executed will should be followed to the furthest extent legally possible, notions of fairness and morality have no place in the analysis of a legal document outside of failures in execution, or where laws intentionally invoke such standards.

This is nothing more than judicial activism. This is a judge who has taken it upon themselves to decide what a dying man wanted to have done with his estate. That is disgusting.

I'm sure you're right. I'll bet 99.9% of people contesting wills are petty, theiving a-holes that don't deserve more than they get for a million good reasons.

Sometimes, though, there are situations where a person will make a will and I don't think they have the mental capacity to do so rationally (like this case). The problem, of course, is a lawyer will typically have signed off on the will stating that their client was of sane mind (or whatever the wording is) when the will is prepared. You're never going to get the lawyer that signed off on the will to admit his client wasn't of sound mind, so right away it's an uphill battle to overturn a will.

Anyway, as far as judicial activism goes (new term for me), in theory it's probably a really bad precident, but in this one case if he made something that was wrong right, I think that's cool.

[onetwo_threefour]

Originally Posted by llama64

What I find abhorrent is the concept that the children deserve ANY of their parents estate.

If my parents leave me stuff, cool. But I'm sure as hell not going to fight for it. I'm man enough to make my own wealth.

Thank god I'm not having kids... means I can leave my wealth to the cute nurse who looks after me just before I die.

There are public policy reasons for some of this stuff.

What if you have a child who's a quadriplegic or low-functioning Down's syndrome afflicted person and then another child that doesn't have these challenges. As a parent, the smart plan would be to leave all your estate to the "healthy" child and let society bear the burden of raising or caring for your dependant child.

There is legislation in Alberta to avoid exatly this sort of scenario so that parents can't ignore depedants in the will, although I generally advise clients that there is no positive obligation to leave anything to adult independant children.

[mikey_the_redneck]

This is court sanctioned robbery, period.

Women get anything they want in the courts in this country.

[troutman]

Originally Posted by Sliver

Sometimes, though, there are situations where a person will make a will and I don't think they have the mental capacity to do so rationally (like this case). The problem, of course, is a lawyer will typically have signed off on the will stating that their client was of sane mind (or whatever the wording is) when the will is prepared. You're never going to get the lawyer that signed off on the will to admit his client wasn't of sound mind, so right away it's an uphill battle to overturn a will.

Capacity is a different cause of action than the wills variation acts. Any will could be challenged on the grounds of lack of capacity, or undue influence (fraud).

[troutman]

Originally Posted by mikey_the_redneck

This is court sanctioned robbery, period.

Women get anything they want in the courts in this country.

[troutman]

Originally Posted by onetwo_threefour

I generally advise clients that there is no positive obligation to leave anything to adult independant children.

I would also generally advise clients to write a detailed memo (and store it with the will) setting out their reasons for treating children differently (ex. estrangement, substance abuse, gambling problems etc).

[valo403]

Originally Posted by Sliver

Sometimes, though, there are situations where a person will make a will and I don't think they have the mental capacity to do so rationally (like this case). The problem, of course, is a lawyer will typically have signed off on the will stating that their client was of sane mind (or whatever the wording is) when the will is prepared. You're never going to get the lawyer that signed off on the will to admit his client wasn't of sound mind, so right away it's an uphill battle to overturn a will.

Anyway, as far as judicial activism goes (new term for me), in theory it's probably a really bad precident, but in this one case if he made something that was wrong right, I think that's cool.

Not sure where you're coming from on the first bolded point. What indicates that he wasn't of sound mind? He wa an a-hole, but nothing indicates he was at all lacking in mental capacity. In fact there's a long history of him not getting along with his daughters.

As to the second bolded aprt, that's a fast track to being disbarred. The vast majority of lawyers arent' ever going to get themselves involved in a will that is signed by someone clearly lacking the ability to understand the contents and meaning of the will. It's career suicide. You're also forgetting the fact that most jurisdictions will require additional witnesses at the time of signing.

[calgaryred]

so the courts will come up with a rule to overturn a decision on a will that was last wishes, and let pedophiles and murders out on the streets in a matter of years.


rather the judges come up with a rule and say to the murder, it isn't fair you'll be out on the streets in years, you left sorrow and loss for hundreds to thousands of people, so you will pay the price for your actions and serve your time.

[Locke]

I dont get it, if Judges get to decide how to divide up assets of the deceased then whats the point in even doing a Will?

If the guy was an ass and wanted to stiff his daughters by not giving them any of his estate then thats his business, his reasons why are irrelevant, and some Judge's opinion of those reasons seems like shaky ground.

How did the Judge find out what buddy's reasons were? Did he ask the guy?

People make Wills in order to avoid this exact set of circumstances, the Will clearly states how he wants his assets divided, so divide them that way and move along.

It has nothing to do with 4 daughters get nothing and the only son gets something, it has to do with 5 siblings involved and 4 getting cut out for whatever reason. The gender, again, is irrelevant.

I dont believe that the Judge should have the right, or the authority to do this. He is effectively breaching a legal contract and saying its cool because hes a Judge and knows better.

[Cowperson]

Originally Posted by Sliver

I'm sure you're right. I'll bet 99.9% of people contesting wills are petty, theiving a-holes that don't deserve more than they get for a million good reasons.

Not necessarily.

An increasing trend is parental abuse, where one sibling has bullied or exercised "undue influence" to have the parent write a will to gain a favoured result.

Clearly, that's a situation that begs a legitimate challenge by other siblings.

Quite often it is not the sons or daughters driving the conversation or action . . . . . it can be the people behind them like husbands and wives giving them grief at home to "get in there and get what you have coming."

Estates can tear families apart, even one's that got along well before a parent died.

The essence of estate planning should be to leave as few problems or ambiguities as possible behind for people to argue about. That includes even putting name labels on things as innocuous as paintings on the wall. If they have a chance to argue, you should assume they will.

A parent who gives everything to one child and excludes all others, whatever the reason, has to know a challenge is likely to come after they die. They've left an argument behind and it is unbelieveable they wouldn't know that.

Humourously, this actually came up with myself a few weeks ago. My mother told my brother I'd been excluded from her will because I've "got too much money already."

Okay . . . . . .

Cowperson

[troutman]

Originally Posted by Locke

I dont believe that the Judge should have the right, or the authority to do this. He is effectively breaching a legal contract and saying its cool because hes a Judge and knows better.

Let's not blame the Judges. The BC Government enacted the Wills Variation Act. It would be intersting to see the debates held when this bill was passed.

[Locke]

Originally Posted by troutman

Let's not blame the Judges. The BC Government enacted the Wills Variation Act. It would be intersting to see the debates held when this bill was passed.

Fair enough, but in this case hasnt the Judge assumed a superior morality and then forced it upon the personal wishes of a dead man?

Has he not, in this case, effectively said that what the deceased has done does not conform with his morality and then altered the contract to adhere to that stated morality despite the fact that what the deceased did was legal?

I see it as a difference between morality and legality. The Judge is there to uphold the latter, not the former.

[theonlywhiteout]

I'm ashamed that this court ruling was made in my country.

[valo403]

Originally Posted by calgaryred

so the courts will come up with a rule to overturn a decision on a will that was last wishes, and let pedophiles and murders out on the streets in a matter of years.


rather the judges come up with a rule and say to the murder, it isn't fair you'll be out on the streets in years, you left sorrow and loss for hundreds to thousands of people, so you will pay the price for your actions and serve your time.

Exsqueeze me?

[troutman]

Originally Posted by Locke

Fair enough, but in this case hasnt the Judge assumed a superior morality and then forced it upon the personal wishes of a dead man?

Has he not, in this case, effectively said that what the deceased has done does not conform with his morality and then altered the contract to adhere to that stated morality despite the fact that what the deceased did was legal?

I see it as a difference between morality and legality. The Judge is there to uphold the latter, not the former.

The Act has instructed the Court to consider what is "adequate, just and equitable". This implies moral standards, and there must be a body of cases in BC (and SCC) that define what this means.

http://www.disinherited.com/articles_variation.htm

Tataryn v Tataryn 3 E.T.R. (2d) 229 S.C.C.

In determining what was "adequate, just and equitable in the circumstances" pursuant to s. 2(1) of the Act, the Court was required to consider testator's legal and moral obligations.

Under s. 2(1) of the Wills Variation Act, the court must ask itself whether the will makes adequate provision and if not, make an order that is adequate, just and equitable. Testamentary autonomy must yield to that which is “adequate, just and equitable” in the circumstances judged by contemporary standards. Spouses and children are entitled to an equitable share of an estate even in the absence of need. Both the testator's legal and moral obligations must be addressed. Legal obligations are those which the law would have imposed on a person during his or her life were the question of provision for the claimant to have arisen. Maintenance and property allocations which the law would support during the testator's lifetime should be reflected in the court's interpretation of what is adequate, just and equitable in the circumstances after the testator's death. Moral obligations are society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. Most people would agree that a strong moral obligation exists for a supporting spouse to provide for a dependent spouse or dependent adult child after his death, if the size of the estate permits. Even independent adult children should receive some provision if the size of the estate permits and in the absence of circumstances negating the obligation.

Where the estate permits, all these conflicting claims should be met. Where priorities must be considered, claims based upon legal obligations should take precedence over moral claims. The testator's freedom to dispose of his property should not be interfered with lightly, but only in so far as the statute requires.

[1stLand]

Maybe 1 of his daughters married a degenerate Coke head with no job and didnt want that portion of the inheritance squandered?
Maybe similiar issues with other daughters? Could be that the son is the most responsibile one and entrusted him to divide up the inheritance as he saw fit based on his other daughter's situations.

But if this is not the case and the Father just wanted to be a jerk, than kudo's on the courts.

I'd rather give my money to charity if I died than see it get into the wrong hands.

[puckluck]

What a joke.

I'll be sure to melt my inheritance when the time comes.

[driveway]

Originally Posted by mikey_the_redneck

This is court sanctioned robbery, period.

Women get anything they want in the courts in this country.

You are the funniest poster on CP. Fotze, hand this man your crown.

[Cowperson]

Originally Posted by puckluck

What a joke.

I'll be sure to melt my inheritance when the time comes.

I'd like to be shot dead at 94 years of age by a jealous teenage husband as I'm walking out of a diner after finishing maxxing out my VISA on eggs, hash browns and toast, with no insurance and leaving nothing in my bank account or savings and having earlier donated any real estate to an animal shelter.

Cowperson

[burning_acid1]

Some cultures follow patrilineal descent - this would entirely contradict their culture.