Kushner Law Group

Kushner's Estate Litigation Lawyers Discuss Testamentary Intent and Trial

Most challenges to wills revolve around testamentary intent, according to litigation lawyers


Vancouver, BC -- (ReleaseWire) -- 08/30/2018 --As a team that practices in litigation law in Vancouver, the lawyers at Kushner Law Group know that a testator's intent is a central issue to many estate litigation disputes. However, a new blog explores how Section 58 of the Wills Estates and Succession Act provides a useful tool to cure defects in a will and to ensure that the testator's last wishes get fulfilled, even if there are some issues with respect to the formalities of their will.

For more, go to: http://www.kushnerlaw.ca/testamentary-intent-trial/

The article begins by exploring whether various handwritten alterations on the will of the Deceased was sufficient to constitute testamentary intent in the case of Estate of Palmer, 2017 BCSC 1430.

This case was particularly interesting because the Application was being made in chambers, yet the Court determined that there was a bona fide issue that needed to be resolved at trial. In providing a decision, the Honourable Mr. Justice Kent made the following statements:

[18] It appears from his affidavit that Mr. Homeniuk's only contact with Ms. Palmer was by way of telephone and he did not actually visit her in British Columbia. This may be the reason why he is unable to comment on her health but evidence on such matters could have been provided through medical or hospital records and/or any health professionals who might have looked after Ms. Palmer in the years before her death.

[19] I wish to make it perfectly clear that my critique of the Homeniuk affidavit is not meant to be a negative reflection of Mr. Homeniuk's credibility or the truthfulness of his evidence. The difficulty arises only because of the affidavit testimony of Sean and Daryl Palmer who each in their own way cast aspersions on the credibility and reliability of Mr. Homeniuk's evidence.

[30] I have attempted to explain above why the affidavit evidence tendered on this application respecting certain matters is insufficient to do justice to the testamentary intentions of Ms. Palmer. In my view, oral evidence from the three affiants is desirable including cross-examination of those affiants on certain aspects of their testimony. As well, evidence must be adduced respecting Ms. Palmer's physical and mental health and, in particular, her testamentary capacity at the time the changes to her will were made.

[31] Furthermore, three of the potential beneficiaries under WESA have not been included in the proceedings to date. It appears that Ms. Perret has no interest in actively participating in the present proceeding, however the court is not satisfied that any meaningful effort has been invested by any of the parties in tracing and notifying each of Bradley Palmer, Grant Palmer and Dolores Palmer. Their legal interests are at stake in this proceeding and they cannot simply be ignored.

Anyone considering challenging a will or involved in estate litigation is strongly advised to take legal counsel. To speak to a litigation lawyer contact the Kushner Group. Visit http://kushnerlaw.ca/ or call 604-629-0432.

About Kushner Law Group
The Kushner Law Group was founded on the principle that a small law firm should be able to offer the same level of legal advice as a big firm at an affordable cost. A unique combination of legal experience and creativity allows the professionals at Kushner to come up with creative and practical solutions for a variety of legal problems.

For additional information, please visit http://kushnerlaw.ca/ or call 604-629-0432.

Kushner Law Group
Lars Kushner
Phone: 604-629-0432
Fax: 604-689-4451
Company website: http://kushnerlaw.ca/
1008 Beach Ave #105