Estate Litigation – Intestate Entitlements for Children of the Deceased – Part 1
Estate litigation lawyers are frequently faced with claims from competing family members who want to share in the Decedent’s Estate. When there is a Will, there is only a limited class of persons who can seek to vary a will.
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In the case of an intestacy, the Wills Estates and Succession Act sets out the framework for distribution. However in a recent decision of the British Columbia Supreme Court, the Mr. Justice Affleck was asked to consider an issue relating to a partial intestacy and a descendant who had been intentionally excluded from a will.
In the recent decision of Atrill Estate, 2018 BCSC 350, the Court was asked to consider the following issue
 The question that arises on this application is “who is entitled to inherit the residue of the estate of the late Mr. Atrill?” That question arises because the late Mr. Atrill left the residue of his estate to his wife who predeceased him and he named no alternative beneficiary and he expressly left his son Ian James out of his Will.
An additional complication in this matter is that the intentionally excluded son, Ian James had predeceased the Testator and fathered three children, one of whom had been adopted out of the family.
With respect to the intentional exclusion of one son, the Court determined that as a result of the intestacy, the intentionally excluded son would still have an entitlement to a share:
….The residue of the Atrill Estate must be distributed according to the “statutory Will” found in the intestate succession provisions of WESA. Consequently I am not able to accept the submission of the respondent that the intention of the late Mr. Atrill to exclude Ian James from a share in the residue of his estate prevails over the provisions of WESA. The respondent is clearly a descendant within the meaning of WESA and for the purposes of sharing in the residue of the late Mr. Atrill’s estate, but the question arises as to who are the other descendants of the late Ian James.
In part II of this blog series, we will address the issue of the adopted son.
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If you are involved in Estate Litigation or wish to vary a will, contact the Kushner Law Group today to schedule a consultation.