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WILLS - Variation - Express trusts - Certainty of intention

Monday, October 07, 2019 @ 9:30 AM  

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Action by Shirley Larochelle (Shirley) for variation of the will of Al Joseph Soucie (Al). Al died in October 2013 at the age of 78. Originally from Quebec, he settled in British Columbia in 1959, later married Barbara Soucie and raised three children, Roland, Daniel and Holly, who were now all adults with their own children. Through their own initiative and hard work, Al and his family members worked together to build and establish a successful family business. Al executed a will and trust agreement in October 2013. While the will and trust made provisions for Roland, Daniel and Holly, neither instrument mentioned nor made provisions for Shirley, Al's other biological child. Four days after executing the will and trust, Al unexpectedly died from natural causes. Al played no role in Shirley's upbringing. The two only met when Shirley sought him out when she was in her mid-30s. They had contact for a few years at that time, but had no contact at all for many years prior to his death. Shirley commenced an action seeking to vary Al’s will to provide her with an interest in Al's estate under the provisions of the Wills Variation Act (WVA). She also challenged the validity of the trust. If found to be invalid, or if the various assets were found to have never been constituted to it, the disputed assets would fall into Al's estate, making them available for redistribution within the context of her WVA claim.

HELD: Action dismissed. Al transferred all of his assets to the trust. Certainty of subject matter was established. There was also certainty of intention. Al expressly conveyed his intention to create the trust to his lawyer after receiving comprehensive legal advice. Al expressly conveyed the same intention to Roland, Daniel, and Holly. Al did not complete all of the steps of his estate plan because of his unexpected death, but that did not create any uncertainty about his intention to create the trust. Al contributed all of his property to the trust on October 18, 2013 and died only four days later. There were no significant assets in the estate. Accordingly, Shirley’s WVA claim was moot and her claim must be dismissed.

Larochelle v. Soucie Estate, [2019] B.C.J. No. 1507, British Columbia Supreme Court, S.A. Donegan J., August 9, 2019. Digest No. TLD-October72019003