CHALLENGING A WILL: AN ILLUSTRATION Part I
A recent case out of the British Colombia Supreme Court provides an excellent illustration and discussion of various grounds upon which a will can be challenged.
In Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.), the deceased was survived by a son and two daughters. The deceased, the son and the two daughters had varying levels of shareholdings in a holding company.
In a prior will, the deceased left her estate to her three children, equally. In a will drawn January 11, 2004, the deceased left her estate to her three children equally, on the condition that the two daughters transferred their shareholdings in the holding company to the son. The deceased died on June 1, 2006 at the age of 90. The daughters challenged the validity of the will, and the court considered the validity of the will from a number of perspectives.
The court first considered the issue of due execution of the will. The formal requirements necessary to execute a valid will are set out in the relevant legislation. While the court was not prepared to accept the evidence of the son with respect to the execution of the deceased’s will, it did accept the evidence of one of the two witnesses to the will. The court was satisfied that the will was signed by the testator in the presence of two witnesses who were present at the same time and who subscribed the will in the presence of each other and the testator.
Court concluded that the will was validly executed. This aspect of the will challenge was rejected.
More tomorrow.
Paul Trudelle
