In Ciarniello v. Ciariello Estate, 2016 BCSC 1699, the will-maker and his wife lived together for 39 years. He had five adult children (including three from a previous marriage). In his Will he left his wife the remaining interest in their matrimonial home, and divided the residue of his estate between the children. One unforeseen result was that because the wife owned the matrimonial home jointly with her husband, his share of the home would have automatically transferred to her on his death. This meant that he had, in effect, left her nothing in his Will. Additionally, there was a large tax owed on the estate, that the wife had to pay using her RIF. Her children supported her variation, but his children from the other marriage opposed it. The court determined that the wife was entitled to a larger portion of the estate, and took into consideration the large tax bills that her husband had left her to pay. The will was varied to provide 25 percent of the estate to the wife.
If a Will is not drafted correctly, there can be many issues upon death. While it may not have been the intention of the will-maker to leave his wife with nothing, this was the result. The court can consider many factors in wills variation claims, such as the effect of taxes in the present case. An estate litigation lawyer will help to identify any issues arising from a Will and make arguments on your behalf to ensure that you have not been accidentally forgotten by a poorly drafted Will.
One of our firm’s greatest strengths is having both an Estate Planning division and an Estate Litigation team under one roof. Our multidisciplinary expertise strengthens our estate services offering considerably, making Hammerberg a forerunner in BC’s estate law field.