7 Reasons to Update Your Will and Related Estate Planning Documents

End of life and incapacity planning are among the most important tasks an individual can complete to ensure that their assets, personal care, and health care are handled appropriately. While it’s not pleasant to think about one’s own death or potential incapacity due to sickness or injury, taking the steps to ensure that your estate planning documents reflect your wishes is well worth the effort.

1. You haven’t drafted a Will: It’s integral that you have a Will so that you can ensure your assets are given to the beneficiaries of your choosing. Otherwise, the intestacy provisions of the Wills Estates and Succession Act of British Columbia will dictate who ends up with an inheritance and who doesn’t. Beloved friends or family members may inadvertently be excluded.

2. You receive a problematic or terminal medical diagnosis: To ensure that you receive satisfactory financial and legal management during periods when you don’t have legal capacity, as an example, falling into a coma, it would be prudent to execute an Enduring Power of Attorney. This document appoints an individual of your choosing to manage your legal and financial affairs. A Power of Attorney does not permit someone to make health care decisions on your behalf – this requires the appointment of a Representative under a Representation Agreement.

3. You have specific instructions you want healthcare providers to follow: If you have specific preferences regarding the scope of medical treatment provided to you when you’re incapacitated, you should execute an Advance Directive. This document can cover preferences such as “do not resuscitate” or “do not provide blood transfusions”.

4. A beneficiary under your Will has become disabled: Unfortunately, if people with disabilities obtain inheritances, their government benefits could be discontinued. To avoid this situation, a will-maker needs to ensure their Will provides fully discretionary trusts for any disabled beneficiaries.

5. You marry, enter a marriage-like relationship or get divorced: While the intestacy provisions of the Wills Estates and Succession Act ensure spouses are provided for in some fashion in the event that there is no Will, the preferable option is to have a Will that fully reflects your wishes. Alternatively, if you divorce or separate from a partner, you need to update your Will. You also need to closely review who benefits from accounts such as group benefits or insurance plans, as the current beneficiary might be your ex.

6. Your financial position significantly changes: If you come into a substantial amount of money by inheritance or other means, you’ll likely want to revise your estate plan to allocate the assets differently. If you do not, a large portion of the funds could fall into the category of residue, and may not go to an intended beneficiary. On the other hand, decreases in income that can come with retirement or losing employment may create a need to revise your Will. If you sell or dispose of assets specifically referenced in your Will to fund your financial needs, the beneficiaries will no longer obtain those gifts. It is prudent to plan ahead and revise your Will as your financial circumstances change.

7. New Grandchildren: If your current Will names specific grandchildren, only those named grandchildren will obtain a share of your Estate. You will need to update your Will to include any new grandchildren.

Capacity of a Will-Maker and Undue Influence:

Jung Estate v. Jung Estate, 2022 BCSC 1298 (“Jung Estate”) is an instructive case regarding testamentary capacity, the testator’s knowledge and approval of the contents of their Will, and the concept of undue influence. By way of background, the testator in Jung Estate was Rose Jung. Rose was described by witnesses as passive and non-confrontational. She left two surviving children: Steven and Jerry. Her assets consisted of a house worth over $1.6 million and the residue of her estate, which was fully spent in paying the expenses of her estate. Multiple factors brought Rose’s capacity into question and caused suspicion around her knowledge and approval of her Will. She made a new Will in 2017, just one month before her passing, although she’d also made a Will in 2001. Despite Rose’s history of treating her sons equally, which was reflected in her 2001 Will, the 2017 Will essentially disinherited Steven, yet offered Jerry a gift of over $1.6 million. Steven started the action; after he passed away, his wife took over the litigation, as she was the executor of Steven’s estate. The action successfully invalidated Rose’s 2017 Will.

In Jung Estate, the court laid out the law surrounding testamentary capacity. It stated that the formal validity requirements of the Will having been met lead to the presumption that Rose, as the testator, had necessary capacity as well as knowledge and approval of the contents of her Will. However, the presumption was rebutted due to the suspicious circumstances raised. The burden to prove the validity of the Will then shifted to Jerry: the person seeking to show the Will was valid. In making its ultimate finding that Rose did not have the requisite capacity, the court discussed and highlighted some of the circumstances that raised suspicion.

In looking to the details of Rose’s situation, the court held that testators must have a disposing mind and memory, such that they appreciate the nature and extent of their assets, as well as the consequences of their Will. The court noted that Rose could not comprehend the value of $1 million, nor did she understand that her gift to Steven, being the residue of the estate, had essentially no value. She did not appreciate the consequences of her 2017 Will. While the lawyer who assisted Rose with her 2017 Will, Mr. Micner, had arranged for a specialist to assess Rose’s capacity, the specialist noted that Mr. Micner “provided him with ‘the softest definition’ of testamentary capacity he had ever received from a lawyer”. The specialist noted that Rose didn’t understand the extent of her wealth, nor could she manage her finances.

Looking to Rose’s poor health at the point she made and executed her 2017 Will, the court noted that Rose became depressed after her husband’s death, and began suffering memory issues and frequent falls starting in 2012. Her health deteriorated to the point that she needed full-time care by 2016, having issues including heart problems, renal dysfunction, and dementia. Rose was a vulnerable individual.

The court also noted the degradation of the relationship between Steven and Jerry. It discussed how the brothers’ relationship took a marked decline after Jerry went through an acrimonious divorce. Steven, a lawyer, had assisted Jerry for some time through the litigation, but was forced to step away due to significant health issues. Jerry was very hurt. Jerry became alienated from his family; he eventually began refusing to visit Steven, even for the holidays. Near the point of Rose’s death, Jerry had began refusing to communicate with Steven about their mother’s care, and refusing to recognize Steven’s power of attorney (with Rose as the subject) or to provide him with receipts.

While the court found that Rose lacked capacity to have validly made or signed the Will, and as such the Will was invalid on the ground of capacity alone, the court went on to discuss markers of a testators’ knowledge and approval. The court discussed the differences between capacity versus knowledge and approval; it stated that capacity includes a person’s ability to make choices, while knowledge and approval include the testator’s ability to understand and approve of their choices. For proper knowledge, the testator must be aware of the magnitude of their estate and the effects of their chosen dispositions. The Will was held to be invalid on this ground too, in addition to the ground of inadequate testator capacity.

Finally, the court explored the possibility that Jerry had unduly influenced Rose. The court held that the Wills Estates and Succession Act (WESA) requires that a party claiming undue influence must show the potential for dependence or domination of the testator. If they’re able to show that potential, the onus to prove that the testator’s will was not overborne through undue influence falls on the person seeking to validate the Will. The court noted that Jerry had the potential for dominance for several reasons. First, Rose was very susceptible to financial abuse. Second, Jerry was instrumental in causing temporary alienation between Rose and Steven. Further, Jerry made the arrangements for Rose to meet with Mr. Micner. While the potential did exist, the court held that Jerry had not exerted undue influence over Rose. Jerry had respected Mr. Micner’s instructions that meetings with Rose must occur without Jerry’s presence, and Jerry further respected Rose undergoing an independent medical assessment.

Jung Estate serves as a guideline of factors that may cause an individual’s Will to be held as invalid. The case warns lawyers of the importance of proper documentation around a testator’s capacity, as well as around any suspicious circumstances or interactions. Estate litigation can be time-consuming, emotional, and costly. The lawyers at Heath Law LLP are experienced in preparing enforceable Wills that meet the needs of testators and recognize the rights of beneficiaries.

If you have questions about preparing a will, contact us today to schedule a consultation.

Parents are considered guardians of their children at law, and issues can arise if a guardian passes away. If a guardian passes away, there are family law rules to consider that determine who will become the child’s guardian. These considerations apply to children under the age of 19.

If two parents were the joint guardians of the child, and one passes, the surviving guardian will assume sole guardianship and all parental responsibilities, unless a Court Order or agreement states otherwise. If only one parent was the child’s guardian, and they pass, the other parent does not automatically become the sole guardian. That said, the surviving parent of a child who is not a guardian may be appointed as guardian through an application to Court under the Family Law Act. This may be the case if one parent solely raised the child, while the non-guardian parent did not spend any regular time with the child. If a child does not have a guardian for a duration of time, the Public Guardian and Trustee (the PGT) will step in. The PGT is a BC corporation with the goal of protecting individuals who do not have legal capacity, such as children.

A parent who is a guardian of a child may choose to appoint a successor guardian. The guardian can do this through their Will or specified form under the Family Law Act. It is important to remember that the successor guardian cannot be granted more rights than the recently deceased guardian. Further, appointments of successor guardians can only be made in accordance with the “best interests of the child” principles. These principles are involved in nearly all aspects of family law and require that the best interests of the child be considered, such as the child’s mental and physical well-being.

The law surrounding guardianship can be complex. The experienced lawyers at Heath Law LLP are happy to assist you with family law and other types of legal matters.

What happens when a person dies without creating a will?

In BC, when a person dies without creating a will this is referred to as intestacy. Intestacy prompts the obvious question: what happens to the person’s assets? The Wills, Estates, and Succession Act, S.B.C. 2009, c. 13 (WESA), establishes a standard asset distribution scheme in the event of intestacy. In general, the intestate’s (deceased’s) spouse is first in line but their share of the assets depends on whether the intestate had children or descendants. Other relatives may also be entitled to a share if there is no spouse or children. However, before any assets are distributed, the court must appoint an administrator of the estate.

An administrator of an intestate estate has various responsibilities including the disposition of the remains, collecting and documenting assets and liabilities, keeping expense records, identifying potential beneficiaries, and eventually distributing the assets. Section 130 of WESA gives priority to the spouse to be appointed as administrator and gives them the ability to nominate an alternate. If the spouse is not appointed, the children of the deceased are next in priority order. Additionally, the consent of the majority of the deceased’s children can affect which child is ultimately appointed. If neither the spouse nor the children of the deceased are appointed, the court may appoint a person they consider appropriate in the circumstances.

According to section 25 of WESA, the standard asset distribution scheme will apply when there is no will (i.e. intestacy has occurred), as well as when a will is silent on the status of a part of the estate (partial intestacy). The starting point for distribution is always the spouse. WESA defines “spouses” as married people or people living in a “marriage-like relationship” for at least two years. People will no longer be spouses if they terminate their relationship, or in the case of marriage, divorce. Notably, WESA will not consider a couple “separated” if they begin living together again within one year of separation for the purpose of reconciliation, or for one or more periods totalling more than 90 days. If a person dies with a spouse but no children, section 20 of WESA determines that the spouse is entitled to the entire estate. Section 21 describes other possibilities: if there is a spouse and children, the spouse is entitled to the household furnishings and $300 000 with the remainder being split equally with half to the spouse and half to the children. If the children are from a deceased’s previous relationship, the $300 000 is reduced to $150 000. Spouses are entitled to their $300 000 (or $150 000) before any assets are distributed to the children. This means that if the total value of the estate is less than those amounts, the spouse will be entitled to the entire estate. In the rare circumstance that an intestate had two or more spouses, section 22 directs the surviving spouses to come to an agreement. If they cannot, the court may decide what happens for them.

If there is no spouse but the deceased had children, section 23 of WESA says the children split the estate equally among themselves. Section 23 goes on to detail which other relatives may be able to claim interest in the estate if there is no spouse or children. In priority order, these are parents, siblings, grandparents, siblings of parents and cousins, great grandparents, and descendants of great grandparents (second cousins etc.). If none of these relatives can be found, the estate will “escheat” to the provincial government according to section 23(2)(f) of WESA. This means that the government will be entitled to the deceased’s assets.

Finally, if a person dies without a will and there are no surviving guardians for a child, the default is that the director under the Child, Family and Community Service Act becomes the personal guardian of the child and the Public Guardian and Trustee becomes the property guardian of the child. If a family member or other interested person wishes to become a guardian, they must apply to the court under section 51 of the Family Law Act for an order appointing them. The court bases this decision on the best interests of the child and as such the court has final discretion on who may become the guardian.

Overall the framework created by WESA provides a clear pathway for resolving how an intestate estate must be distributed as well as the care and guardianship of any surviving minor children.

If you don’t have a will, or you’re ready to begin estate planning so your beneficiaries receive their intended inheritance, contact Heath Law 

There is often a delay between a lawyer completing a client’s will, and that client being available to execute (sign) it. The Covid-19 Pandemic has only lengthened these delays, which can be problematic if the will-maker happens to pass away prior to executing the new will.

The Wills, Estates, and Succession Act, S.B.C. 2009, c. 13 (WESA) lays out the requirements for a valid will, including that the will must be duly executed by the will-maker. If a new will is found to be invalid, the pre-existing valid will governs the distribution of assets. However, s.58 of WESA provides that the court may choose to cure a formally invalid will. In order to use s.58, the court must first be satisfied that the will is authentic and that it represents the will-maker’s deliberate, fixed, and final intensions regarding the disposal of their property upon death.

In a recent case, Bishop Estate v. Sheardown, 2021 BCSC 1571, the will of 76-year-old Marilyn Bishop was brought before the court. A charity had been listed as a beneficiary in Ms. Bishop’s previous will made in 2014. In early 2020, Ms. Bishop instructed her lawyer to draft a new will that removed the charity and added new gifts to family members. Ms. Bishop had an appointment to execute the will on March 20, 2020. Unfortunately, Ms. Bishop was unable to meet in person with her lawyer due to the pandemic and passed away four months later without having executed her will.

The charity argued that Ms. Bishop’s failure to execute the will was evidence that she had changed her mind and that the new will did not represent her final intentions. The court rejected that argument, noting that Ms. Bishop had become closer to her family in the years leading up to her death thereby explaining the new gifts, that she had reviewed and filled in the blanks in the new will, and that Ms. Bishop’s failure to execute the will remotely was not evidence of a change of heart. Therefore, the court found that the new will satisfied the test in s.58 and ordered that it be fully effective.

If you have concerns about the validity of your will or other questions, please call Heath Law LLP to book a consultation.



While will-makers have flexibility regarding how they dispose of their assets upon death, if they fail to adequately provide for a surviving spouse or child, their will may be varied by the Court. Section 60 of the Wills, Estates and Succession Act of British Columbia authorizes a court to order compensation that it finds adequate, just, and equitable, out of the will-maker’s estate. Only spouses and children of the testator may seek a variation and must commence an action within 180 days from the Grant of Probate. Spouses include common-law partners, with whom the will-maker was in a marriage-like relationship for at least two years. Case law has excluded stepchildren not adopted by the will-maker and birth-children adopted by third parties from being proper applicants of a will variation claim.

The seminal case regarding wills variation is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (“Tataryn”), where the Court held that a will-maker must meet both their legal and moral obligations to surviving children and spouses. The legal obligations are those which would have been imposed if property division and support were considered during the will-maker’s lifetime. Moral obligations represent society’s reasonable expectations of what should be done in the circumstances and are linked to community standards. While the Court in Clucas v. Royal Trust Corporation of Canada, 1999 CanLII 5519 (BC SC) held the will-maker’s autonomy should only be interfered with to the extent statute requires, there are some factors which often lead to variation, even in the situation of adult children who are financially independent.

The standard of living which the will-maker allowed a Plaintiff to become accustomed to will influence their level of moral obligation. In Wilson v. Lougheed, 2010 BCSC 1868, the Court considered the large size of the estate (nearly $20 million), the daughter’s current financial circumstances, and how the will-maker had historically treated her very generously when deciding to vary the will. While there is a general principle that Plaintiffs should continue to be maintained in a manner which they’ve become accustomed to, it is balanced against the estate’s ability to meet competing claims. Adult children who have financially contributed to their parents’ estates, but who are then not adequately provided for in the will are often successful under wills variations claims. This was seen in Wilcox v. Wilcox, 2000 BCCA 491, where the Court varied a mother’s will in favor of the daughter who’d made contributions to the financial purchase and running of the mother’s house. The years which the daughter had cohabitated with her mother, and the mother’s promise that the daughter would inherit the house portion of the estate also had weight in court.

The case law regarding when will-makers can limit or disinherit is ever-evolving and hinges around many factors. Will-makers’ wishes to limit inheritance may come into conflict with the moral obligations set out in Tataryn, specifically when a will-maker’s reasons might not be sufficient under community standards of what a judicious parent would have done. This was seen in Lamperstorfer v. Lamperstorfer Estate, 2018 BCSC 89, where the Court held that the will-maker’s mental health challenges and reclusiveness from society prevented him from meeting his moral obligation to his sons. Absent reasons otherwise, there’s an expectation that adult children will share equally in their parents’ estate, as seen in Laing v. Jarvis Estate, 2011 BCSC 1082. Yet reasons can be various, and the Court is hesitant to interfere with a will-maker’s wishes so long as they were made with a sound mind. In particular, Williams v. Williams Estate, 2018 BCSC 711, where a father arranged his affairs to leave all but approximately $5,000 of his estate to his favorite son, Brent, to the detriment of the other son, Ron. The will-maker had a much stronger relationship with Brent, and Brent also had dependants to support. Further, the will-maker had entirely lost contact with Ron for several years. Despite how the prevailing son Brent was financially stable before his father’s passing, and how the financial outcome was unequal, the Court refused to vary the will.







Due to COVID-19, the Wills, Estates, Succession Act of BC (WESA) was amended in August 2020 to permit a Will-maker to sign a Will in the electronic presence of witnesses and the Will-maker and witnesses to sign by electronic signature.

Section 35.1 of WESA defines “electronic presence” or “electronically present” to mean the circumstances in which two or more persons in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location. We believe this means that the Will-maker and the witnesses may sign by way of videoconference.

When witnessing a Will by videoconference, each of the Will-maker and the two witnesses must sign an identical Will, and those two (or three, if none of them are in the same place) documents compiled together form the Will. As a result, the Will could be two or three times as long because slipping in signature pages is not permitted. A copy of a Will is considered identical even if there are minor, non-material differences in the format between the copies.

We recommend that a Will signed electronically include a statement that the Will was signed in counterpart in the electronic presence of two witnesses while connected by Audio and Video Conference.

Can the executor of a will receive remuneration for their work? At common law, an executor could only receive payment for their services if authorized under the will. However, this presumption against payment has been superseded by section 88 of British Columbia’s Trustee Act. Accordingly, executors may receive payment from three sources, including:

  1. up to 5% of the gross aggregate value of the estate’s capital;
  2. up to 5% of the income generated by the estate’s assets during the period of administration; and
  3. 4% of the average market value of the assets per annum as a “care and management fee.”

These percentages are the statutory maximums that a court or registrar may grant to an executor.  When determining the executor’s remuneration, the court or registrar will consider the following five factors:

  1. the estate’s size,
  2. the degree of care and responsibility required,
  3. the amount of time required,
  4. the degree of skill and ability demonstrated, and
  5. the level of success achieved in administering the estate.

Section 88 of the Trustee Act applies whenever the will is silent with regards to the executor’s remuneration. It also applies to the administrators of intestacies (persons managing the assets of a deceased person who died without a will).

However, the Trustee Act’s remuneration percentages can be superseded whenever a will includes a renumeration clause for the executor. This provision can be implied. For example, at common law, there is a presumption that any gift to an executor is intended to be compensation for the person’s services as an executor, in lieu of a fee.


The Covid-19 pandemic has generated significant market volatility. Investors must assess risk and consider whether the investment portfolio should be diversified to reduce risk exposure in an unpredictable market. Trustees who have Trust Property invested in the market are faced with additional obligations that can make protecting Trust Property challenging. Trustees must comply with the terms of the Trust Property as well as the legislation governing trusts. In BC, the legislation governing trusts is the Trustee Act (the “Act”).


Pursuant to section 15 of the Act, a Trustee may invest property in any form of property or security in which a Prudent Investor might invest. The Trustee is under an obligation when investing Trust Property to exercise the care, skill, diligence and judgment that a Prudent Investor would exercise in making investments. The Trustee is not liable for a loss to the trust arising from the investment of Trust Property if the Trustee reasonably assessed the risk and return and acted as a Prudent Investor.


Unlike other provinces, BC does not expressly impose an obligation to diversify investments. However, the Prudent Investor standard implicitly requires the Trustee to assess whether diversification is necessary to reduce risk exposure. The Prudent Investor standard was considered in Miles v Vince, 2014 BCCA 289 [Miles]. The issue on appeal was whether the Trustee was under an obligation to diversify the investment portfolio.


In Miles, the Beneficiary claimed the Trustee should have diversified the Insurance Trust’s assets. The Trustee argued she was under no statutory obligation to diversify the investment portfolio. The Court concluded that the Trustee had breached her statutory duty to prudently invest Trust Property pursuant to section 15.2 of the Act. A Prudent Investor must consider the investment portfolio’s risk and whether diversification in necessary to protect the assets. To the contrary, the Trustee had invested the Insurance Trust’s assets into one illiquid asset that put the Trust’s assets at risk. The Trustee had failed to protect the interests of all the beneficiaries of the trust. As a result, she was removed as Trustee. Pursuant to section 31 of the Act, the Court has power to remove and appoint a new Trustee.


In another case, Pestano v Wong, 2019 BCCA 141, the Court stated the definition of a Prudent Investor has evolved to mean:


  • Making necessary investments that a Prudent Investor would make to protect capital and provide income;
  • Developing risk and return objectives that are reasonable and suitable, given the size of the overall portfolio, and the circumstances of the investor;
  • Ensuring reasonable diversification of the type and class of investments;
  • Acting with prudence when delegating investment authority to an agent;
  • Incurring only reasonable and appropriate costs; and
  • Adopting a balanced approach to management investments


Trustees have significant responsibility when investing Trust Property. With the current level of market volatility, it is important to consider whether an investment portfolio should be diversified to reduce the Trust Property’s risk exposure. Heath Law LLP can help you with any questions concerning Trust Property and the Prudent Investor Standard.




This article concerns the recent British Columbia Court of Appeal decision in Bergler v Odenthal, 2020 BCCA 175 [“Bergler] The appeal concerned the validity of a “secret trust” that Ms. Stuhff, now deceased, had allegedly imposed on her common-law partner, Mr. Odenthal. Secret trusts contain two essential features: “communication by the deceased person to his or her devisee, legatee or intestate heir, and an acceptance by that person of the request that he or she will hold the property in trust for the stated person or purposes.”[1] Acceptance may occur in the form of silence. The secret trust must also meet the usual trust requirements of certainty of intention, objects, and subject-matter.


The trial judge held that Mr. Odenthal had accepted Ms. Stuhff’s request that her estate would go to her niece, Susanne Bergler. The trial judge determined the acceptance occurred at the hospital shortly before Ms. Stuhff’s death. Ms. Stuhff’s niece and sister testified that in the days leading to Ms. Stuhff’s death, Mr. Odenthal had told them that Ms. Stuhff told him that she wanted her estate to go to her niece, Susanne. Susanne did not have a career or a home and wanted to go back to school. Ms. Stuhff’s sister testified that Ms. Stuhff told her that Mr. Odenthal was to transfer her estate to the Bergler family when he started a relationship with a new partner.


A conflict arose concerning when the estate was to be transferred to the Bergler family. Mr. Odenthal claimed he was to hold Ms. Stuhff’s assets until his death (he was 51 years old). After Ms. Stuhff’s death, Mr. Odenthal received the entire estate as heir on intestacy. He later married and removed Susanne as a beneficiary under his will, leaving nothing to the Bergler family. A relative of Ms. Stuhff testified that he overheard Ms. Stuhff tell Mr. Odenthal that when he ‘had a new chick’, she wanted ‘all her money’ to go back to her family.[2] The relative said he did not hear Mr. Odenthal object to the request. The trial judge found the relative’s evidence to be reliable. According to Mr. Odenthal’s testimony, he told Ms. Stuhff that he would abide by her wishes concerning the distribution of her estate. The trial judge held that this constituted the requisite acceptance for the creation of a secret trust.


On appeal, Mr. Odenthal claimed there was no evidence of his acceptance of the secret trust. The Court held that the trial judge did not err in finding that Mr. Odenthal had accepted the secret trust. He was required to transfer the assets either upon death or upon entering into a new relationship, whichever came first. A secondary issue on appeal concerned a property owned in joint tenancy by Ms. Stuhff and Mr. Odenthal. Mr. Odenthal claimed it passed to him automatically upon her death and, as a result, never became part of her estate. The Court held that the creation of the secret trust severed the joint tenancy and that once the secret trust came into existence, “nothing was left to pass by the intestacy to the defendant”.[3] The Court upheld the trial judge’s decision and dismissed the appeal.

[1] Bergler at para 2.

[2] Ibid at para 5.

[3] Ibid at para 40.