In a recent decision of the BC Supreme Court,
Heathfield v. St. Jacques, 2015 BCSC 505,
Madam Justice Ballance considered a claim to vary a will that was
made when the personal circumstances of the will-maker were vastly
different than those in existence at the time of his death.
Although the Court may vary a will, this case serves as an
important reminder to update your will regularly.
On November 13, 2011, Michael Heathfield died suddenly at the
age of 53, leaving an estate worth approximately 1.2 million
dollars. Approximately 7 years before his death, Mr.
Heathfield executed a will (the "Will")
naming the defendant, Ms. St. Jacques, as the sole beneficiary. At
the time, Mr. Heathfield and Ms. St. Jacques were in a common-law
relationship. Under the Will, their two children were beneficiaries
only in the event that Ms. St. Jacques did not survive Mr.
About two years after the Will was written, Mr. Heathfield and
Ms. St. Jacques permanently separated. Despite being advised
at this time to formally change his Will, Mr. Heathfield did
not. Mr. Heathfield did, however, make handwritten comments
on his Will. As these were not properly executed, they did not
serve to alter the Will. Both parties agreed that the comments made
on the Will were attributable to Mr. Heathfield and each comment
was accompanied by Mr. Heathfield's signature. The comments
included: "Nicole St. Jacques is Left nothing in my
will"; "Change my will"; "My kids get
The Public Guardian and Trustee
("PGT"), in its capacity as the
children's litigation guardian, commenced this action under the
former Wills Variation Act, R.S.B.C. 1996, c. 490 (the
"WVA"); Mr. Heathfield died in
2011, before the Wills, Estate and Succession Act (
"WESA") came into force. The
PGT contended that Mr. Heathfield failed to make adequate
testamentary provision for his children and sought an order that
the Will be varied to exclude Ms. St. Jacques as a beneficiary and
divide the estate equally between the children, with each
child's share being held in trust. The PGT argued it should be
the trustee of such funds.
Ms. St. Jacques opposed the application because she asserted she
would use her inheritance to her children's benefit and that
the lawsuit was an attack on her integrity as a parent. In the
event the Will was varied, she asked to be appointed the
Madam Justice Ballance held that Mr. Heathfield owed his
children both moral and legal duties. The comments on the Will
demonstrated that Mr. Heathfield recognized these obligations.
He owed no moral and legal duties to his ex-common-law
spouse, Ms. St. Jacques.
Madam Justice Ballance concluded that, "by leaving the
entirety of his substantial estate to his former spouse to whom he
owed no legal or moral duty, and on whom he was not relying and
with whom he did not have an agreement as to how she would
subsequently provide for the children, the Deceased did not fulfill
the legal or moral obligations of a contemporary judicious
Accordingly, the Will was varied to create testamentary trusts
for the children, funded by the entire residuary estate. There were
no serious concerns about Ms. St. Jacques acting improperly with
the funds so she was named as the trustee, and the PGT was named as
the substitute trustee.
Although a recent decision, it was based on now-repealed
legislation. If Mr. Heathfield had died after March 31, 2014, the
WESA would have applied to his Will, and the
children's entitlement to Mr. Heathfield's estate would
have been much clearer. Section 56 of the WESA provides
that, subject to a contrary intention appearing in the will, gifts
are revoked to those who are no longer married or common-law
spouses; Ms. St. Jacques gift would have been revoked and Mr.
Heathfield's entire estate would have gone to his children.
Furthermore, section 58 of the WESA empowers the Court to
treat records that represent the will-maker's testamentary
intentions, but do not comply with formal requirements, as valid.
If Mr. Heathfield's handwritten comments on the Will were held
to demonstrate his fixed and final intention, his entire estate
would have also passed to his children this way.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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