It is important to have an estate plan in place to ensure that your loved ones are provided for. However, as a recent British Columbia case demonstrates, even the best-laid plans can result in litigation if all aspects of an estate are not specifically provided for in a will.

Testator Leaves Behind Four Children

The testator was 95 years old at the time of her death in April 2020. Her husband had predeceased her and she left behind four adult children.

For 65 years, the testator had lived in British Columbia. However, she was moved into an assisted living facility with the agreement of all her children. Unfortunately, while living there, she fell and broke her hip in late 2019. Following this incident, her youngest daughter took her to live with her in Alberta, where she remained until her death.

Siblings At Odds Despite Stipulations in Testator’s Will

In her will, the testator named two of her children as co-executors of the will and co-trustees of the estate; her youngest son and her youngest daughter. Her will stipulated that the estate would be divided into four equal shares, to be given to each of the four children.

However, even before the testator died, there had been disputes and disagreements between the children, which only increased following the testator’s death.

One such dispute led to a court action, heard in September 2021 and decided the following month. The court petition was initiated by the youngest daughter, naming the youngest son as the respondent.

Son Consents to Orders On Condition of Distribution of the Ring

In her petition, the daughter sought numerous orders, including that the son be removed as co-trustee of the estate and as co-executor of the will. She also sought numerous orders relating to the estate’s assets and an order for the son to indemnify the estate for the legal costs associated with the petition.

In response, the son consented to all of the orders sought by the daughter, with the exception of the indemnification order. However, the son stipulated that his consent was conditional on obtaining an order from the court relating to the testator’s bolt ring. He asked the court to order the daughter, who was in possession of the ring, to give it to the eldest son in accordance with the testator’s wishes, either immediately or upon the distribution of the estate.

Testator’s Ring Has No Monetary Value, But Rich in Sentimental Value

The ring had been made for the testator by her husband out of a bolt. She had never taken it off. It had tremendous sentimental value to her children, but no monetary value. The bolt ring had been the sticking point in the children being able to resolve the issues related to their mother’s estate.

The youngest son submitted that the court had jurisdiction to make the orders he sought regarding the bolt ring, as it was an asset of the estate. He further submitted that it was in the estate’s best interest to deal with the bolt ring at the time of the hearing, in the hope that it would enable the parties to finally resolve all issues related to the estate, without the expenditure of more resources. He claimed that the testator had always intended for the eldest son to have the bolt ring and she had lacked capacity when she gave it to the youngest daughter.

In response, the youngest daughter agreed that the court had jurisdiction to make an order for the bolt ring, but submitted that her petition was not the right context to do so. Additionally, the daughter stated that the testator had given her the bolt ring in the last months of her life as a gift. Additionally, she argued that if any issues of capacity were raised in relation to the ring, they should be dealt with at a later hearing.

Court Orders Daughter To Distribute Ring to Eldest Son

At the outset, the court stated that it clearly had jurisdiction to deal with the bolt ring because it was an asset of the estate. Additionally, the court held that it would be appropriate to deal with the matter within the context of the petition, rather than a later date, in order to secure the just, speedy and inexpensive determination of the proceeding on its merits.

The court then reviewed the evidence presented by the parties and held that the testator had intended for the bolt ring to go to the eldest son after her death, a fact that was well-known by all four siblings.

As to the daughter’s claim that the testator had given her or promised her the bolt ring in the last months of her life, the court held that the testator had lacked the capacity to make such a gift. The evidence showed that the testator had suffered from dementia in the last period of her life and lacked the competency to make medical or financial decisions. Thus, the court held that she had lacked the capacity to choose to gift the bolt ring to the daughter, whether as an inter vivos transfer or a testamentary gift.

In the result, the court, therefore, directed the daughter to distribute the bolt ring to the eldest son upon the distribution of the estate, made all the orders sought by the daughter and consented to by the youngest son, and ordered both siblings to share the costs of the petition.

Contact Calgary Litigation Lawyers for Assistance with Your Estate Disputes

Contact DBH Law to speak to an estate lawyer who will provide reliable legal advice in a personal, professional, and friendly manner. Please contact us to talk about how we can help you. We can be reached online or by phone at 403.252.9937.