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Disinheritance and hearsay

Will the court vary a will if two children are disinherited? What if the reason for disinheritance as stated in the will is factually incorrect? Who will the court believe if all the stories are different?

In the 2016 wills variation decision of Sharma v. Sharma Estate (2016 BCSC 1397), Madam Justice Griffin was asked to vary a will in favor of the disinherited children. Her will left her entire $1.75M estate to her youngest son, and disinherited her other two children. The youngest son had a criminal history, and at the time of the trial had diminished the value of one of the estate assets by running a marijuana grow operation there. All three children told very different stories about the relevant events, and their respective relationships with the deceased. The stated reason for disinheritance in the will was that the older children had received gifts of monies and other things during the deceased’s lifetime. This was consistent with the lawyer’s evidence from when he drafted the will.

Of importance in this case is Madam Justice Griffin’s reasons regarding the self-serving hearsay evidence of the parties:

[32]        I have been very cautious about giving much weight to the evidence of the parties or of witnesses closely allied with the parties, such as family or friends, as to what the Testatrix told them about the reasons for her dispositions in the 2007 Will. This is because:

a)   Each of the parties was self-serving in their recollections as to what the Testatrix told them.

b)   The Testatrix may have had reasons to tell different things to her children, or their friends, or other family members, seeking to align with or against one or the other for any variety of possible reasons, including emotional reasons that had little to do with the truth. The Testatrix may also have been mistaken about her understanding of the facts.

c)   There is better evidence of the Testatrix’s intentions when she wrote her 2007 Will than evidence of the people now making competing claims under it and their allies. The best evidence is the language of the 2007 Will and the evidence of the Testatrix’s instructions to the lawyer who prepared the 2007 Will, Mr. Jussa, who testified at trial. This evidence is internally consistent and the solemnity of the occasion and independent and neutral role of the lawyer are circumstances which provide more objective indicators of reliability.

[33]        That leads me to comment generally on credibility.

[42]        I am not required to believe all or nothing of what a witness says; rather, I can determine that some of what a witness says is in accord with the balance of probabilities, and some is not. There were so many inconsistencies in the evidence that it is impossible to wholly prefer one party’s evidence over the other.

In hearing all the evidence from the parties and witnesses – including allegations of theft and allegations that parties were estranged from the deceased – Madam Justice Griffin concluded that the will was factually incorrect as to the gifts she had given the older children during her lifetime. In reality, she had provided more support to her youngest son than to the others.

She reviewed the circumstances of each child. One was on disability due to osteo-arthritis, one was financially well-off, and the youngest son worked a $13/hr job. She concluded that none of the children abandoned the deceased, though there was some distance between the disinherited children and deceased near the end of her life, but that none should be unduly criticized for the distance. She varied the will and allocated almost equal thirds of the residue of the estate to each of the parties, with the disabled child getting 1% more than the other two. Of note, there were Fijian properties to which the BC wills variation action could not apply – and those went to Victor as a result.

 

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