[ql06] PROPERTY: B.C. and wills
- From: "K.K. Campbell -- LAW'06" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Wed, 22 Oct 2003 18:59:57 -0400
[Only in B.C., they say...]
Spurned woman wins half of her parents' estate
Francine Dubé
National Post
Friday, October 17, 2003
A 60-year-old woman who says her parents treated her younger brother
better because he was a boy has successfully challenged their last will
and testament in a British Columbia court, winning the right to half
their $650,000 estate rather than the 20% originally bequeathed to her.
Marcelle Ryan testified she was sent to live with her grandmother at the
age of three months so her mother could return to work, while her
brother Bernard, born six years later, was raised by their parents,
Marcel and Simone Delahaye, and lived with them until he married at the
age of 27.
The Delahayes paid for Bernard's education and he became an electrician.
They refused to pay Ms. Ryan's way through nursing school, and she has
been on welfare most of her life. She was convicted in 1972 of welfare
fraud. Ms. Ryan, of Abbotsford, also testified that she was told she was
given the name "Marcelle" because her parents had been expecting a boy
and wanted to name him after Mr. Delahaye.
The decision has infuriated Bernard Delahaye and his wife, Koreen, who
blame B.C.'s unique inheritance laws for their reversal of fortune.
"Basically what the courts did, they took my parents' will and threw it
out the window," said Mr. Delahaye, 54.
He said his own family life sometimes suffered because of his close
attention to his parents' needs. "I always lived within about three
miles of my parents. I was at their beck and call. In my parents' later
life I was their chief cook and bottle washer."
Marcel Delahaye died in 1995, his wife in 1998.
Unlike most jurisdictions in Canada, B.C. allows adult children who are
not dependents to challenge wills in court, and weighs moral arguments
in reaching a decision.
B.C. Supreme Court Justice Daphne Smith cited the unequal treatment of
Marcelle and Bernard in her decision. She described Mrs. Delahaye's will
as the last opportunity she had to "do right" by her daughter.
Ms. Ryan is now hearing impaired and suffers from chronic pain caused by
osteoarthritis in her lower back, which she injured in a car accident in
1980.
"There's certainly a body of opinion that would say that we're unique
and this is inappropriate," said Gordon MacRae, an estate lawyer with
Legacy Tax and Trust Lawyers. The law governing inheritances in B.C. was
imported from New Zealand in the 1920s, and while most provinces at one
time had an equivalent, they have been amended over time, he said.
He counsels clients by telling them the law applies only to estates, and
does not cover such things as RRSPs with a designated beneficiary, or
life insurance.
Marilyn Piccini Roy, who teaches successions and trusts at McGill
University, says B.C. is the most liberal province when it comes to
overturning wills. Under Quebec's Civil Code, it is extremely difficult
to overturn a will and the courts have no jurisdiction to change the
terms of a will.
"If someone came to see me, 60 years old or even 40 years old or 30
years old and said, 'I was only given 20% of the estate and I want to
make a claim,' I'd say, 'forget it,' " Ms. Piccini Roy said.
In Alberta, only dependents can make such a claim, and a 60-year-old
woman isn't a dependent under the law, said Philip Renaud, an estate
lawyer with Duncan & Craig in Edmonton and current chairman of the
national wills estates and trusts section of the Canadian Bar
Association. In Ontario, moral arguments over wills are generally not
considered, says Barry Corbin, an estate lawyer with Fraser Milner
Casgrain in Toronto.
The Delahayes have appealed the decision. "It totally disillusioned us,"
Koreen Delahaye said. "People pay hundreds of dollars to have a will
written. In the province of B.C., it doesn't mean anything."
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