Sunday, June 11, 2017

Hiding Assets in Divorce Proceeding Backfires

To some extent, the court process depends on the integrity of the people involved, including the parties to a lawsuit, as well as their lawyers. Of course, some people do lie. The process allows for pre-trial document disclosure and examinations under oath. At a trial, there are usually several witnesses, and lawyers have the opportunity to question opposing parties as well as all of the witnesses. After a full trial, the judge then weighs the evidence, considering such things as the internal consistency of a witness’s own evidence, as well as each witness’s evidence when weighed against the evidence of others.  Finally, is the evidence overall believable, or, to use the language of the courts, does it meet the preponderance of probabilities? My sense is that judges do quite a good job in weeding out fabrications, but they cannot see into the hearts and minds of those who appear before them.

The majority of the cases settle before trial, without the benefit of a judge assessing credibility. It must be tempting for some in a bitter dispute to lie, or in the case of a divorce, to hide assets. Doing so may backfire.

In divorce proceedings, Rosa Donna Este was required to disclose her assets to her former husband. She disclosed some, but apparently not all. She and her former husband settled the proceedings; their assets were divided in accordance with a consent order, and the Court granted the divorce.

Subsequently, after a falling out with her mother, Mina Esteghamat-Ardakan, and her brother, Francis Amir Este, Ms. Este sued them alleging that they held millions of dollars worth of assets in trust for her. She alleged that they held the assets belonging to her to avoid creditors, and in particular, the claim by her former husband.

According to Ms. Este’s own allegations, in her Further Amended Notice of Civil Claim,

11C.    From approximately 1990 to late 2014, the Plaintiff, Mina and Francis regularly engaged in discussions and planning regarding the manner in which properties that they owned or proposed to acquire should be held, including the name or names in which title should be held and trust arrangements or other agreements amongst themselves that should be made related to them. The primary objectives which the Plaintiff, Mina and Francis sought to advance through those discussions and planning measures included maximizing the extent to which the capital gains exemption available for gains realized on the sale properties claimed as their principal residences could be claimed, and protecting those properties from potential claims that their present or potential future spouses, romantic partners or creditors might make against them.
Her claim set out that,
(a)    From approximately late-May of 2013 through to October of 2013, Mina, with Francis’ participation and assistance, counseled and encouraged the Plaintiff to propound a false and concocted story, devised by Mina, that Mina was the true owner of assets that were then owned by the Plaintiff in defending a family law action that the Plaintiff’s (then) husband had commenced against her in May of 2013 (“Family Law Action”).
Other particulars of her claim include signing “fake back-dated trust declarations,” adding her mother as an account holder, and then deleting her own name, and giving false evidence.   
After four weeks of trial, Ms. Este’s mother and brother brought an application to dismiss her claim on the basis that there was no evidence to support her claim, and that her claims were an abuse of the court’s process.

Mr. Justice Funt, in Este v. Esteghamat-Ardakani, 2017 BCSC 878, set out the main issue before him:

[1]             Is it an abuse of process for a plaintiff to claim ownership of Blackacre that the defendant claims to own when that plaintiff, in recent divorce proceedings, swore falsely and pleaded not to own Blackacre, thereby deceiving then spouse, counsel, and the Court? Does it matter that the defendant knew of the deception and participated by preparing false documents? These questions are at issue before the Court.
[2]             It is an abuse of process for a plaintiff to ask the Court to perfect a fraud designed to cheat financially one’s spouse in divorce proceedings. An exception does not exist where the defendant knew of and participated in the deception, even where the defendant will enjoy a windfall.
[3]             The foregoing rule protects the administration of justice from being brought into disrepute. The Court will not help to perfect a fraud.
[4]             In the case at bar, the foregoing rule is engaged. The trial of the action is underway with the plaintiff having closed her case in which she seeks to have her claim to ownership in significant funds and various real estate properties recognized (and a particular mortgage declared invalid). Before proceeding further, the defendants seek to have the plaintiff’s claim dismissed as an abuse of process. They say that the plaintiff’s case is not one that a court would put to a jury.
Mr. Justice Funt, in dismissing Ms. Este’s claim, held that her conduct engaged three aspects of abuse of process: illegality, the pursuit of inconsistent rights, and bringing the administration of justice into disrepute.

It is illegal to transfer assets to defeat, delay or defraud creditors. Mr. Justice Funt noted that had Ms. Este sued her mother and brother for the assets before her divorce, she would not have been precluded from pursuing her claim. But in this case, she was relying on evidence of her own illegal conduct, and was accordingly precluded from recovery of the assets.

Secondly, Ms. Este was assertion of rights was inconsistent with her assertions in her divorce proceedings that she did not own the assets she was seeking to recover from her mother and brother. Mr. Justice Funt wrote at paragraph 33,

A litigant cannot use the Court’s process to state one set of rights in a proceeding and then in a subsequent proceeding assert rights inconsistent with the rights first stated. Otherwise, uncertainty would result and many paths for mischief would be introduced into our law for the avaricious, the malicious, and the vexatious. The litigant must elect at the outset which set of rights the litigant wishes the Court to recognize.
Thirdly, allowing Ms. Este to recover the assets in this context would tend to impair the integrity of, and public confidence in, the administration of justice.

The Court will not assist fraud. Mr. Justice Funt wrote,
[76]         In sum, in the divorce proceedings, the plaintiff chose to take steps to defeat her then husband’s legal rights by representing falsely, including in Court documents and under oath, the properties and funds she now claims she rightfully owns. She now wishes to perfect her fraud in the divorce proceedings — a fraud designed to cheat financially her then husband engaging the past unwitting help of officers and a judge of the Court.
[77]         Bluntly stated, the plaintiff now asks the Court to help her with her illegal artifice because her mother and brother no longer will. Such, the Court will not do.

Sunday, June 04, 2017

Bach Estate

In British Columbia, if you make a gift to one of the two witnesses to your will, or to the spouse of one of the two witnesses to your will, the usual rule is that the gift is invalid. This rule can lead to very harsh results, invalidating significant gifts to close family or friends, thwarting the will maker’s intentions.

Fortunately, the Wills, Estates and Succession Act contains a new provision allowing the court to declare that a gift to a witness, or to the spousal witness, is valid and may take effect, if the court is satisfied that the will maker intended to make the gift.

The relevant provision is section 43 of the Wills, Estates and Succession Act, which says:

Gifts to witnesses
43  (1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

(a) a witness to the will-maker's signature or to the spouse of that witness,
(b) a person signing the will by the will-maker's direction, or the spouse of the person signing, or
(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).
(2) For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.
(3) If a gift is void under subsection (1), the remainder of the will is not affected.
(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.
(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker's intention under subsection (4).

The first reported case of which I’m aware applying section 43 (4) was published in April, 2017. The case is Bach Estate, 2017 BCSC 548.

The evening before he died, Terry Bach signed a paper leaving his estate to his sister Sharon Thibodeau. The document was witnessed by two witnesses, one of whom was Ms. Thibodeau’ s husband. Mr. Bach had earlier seen a notary public to make a new will, but his physician advised him that he needed to go to the hospital because of his deteriorating health, and he was unable to complete his new will with the notary public. Accordingly, he signed the handwritten document expressing his wish to leave his estate to Ms. Thibodeau.

If Mr. Bach had died before the Wills, Estates and Succession Act came into effect, his intended gift of his estate to Ms. Thibodeau would have failed. One of the issues before Mr. Justice Kelleher in this case was whether the gift should be given effect despite the fact that Ms. Thibodeau’s husband the will.

In applying section 43 (4), Mr. Justice Kelleher applied the analysis the courts have used in deciding whether to give effect to a document that does not comply with the formalities of a will pursuant to section 58 of the Wills, Estates and Succession Act. In applying section 58, the court considers whether the non-compliant document records a deliberate or fixed and final expression of the person’s testamentary intentions.

The issue under section 43 (4) is whether the gift to Ms. Thibodeau expressed Mr. Bach’s testamentary intentions despite being witnessed by her husband. On the evidence, Mr. Justice Kelleher was satisfied that it did. Mr. Bach had previously told both a friend, and another of his sisters, that he intended to leave his estate to Ms. Thibodeau. Mr. Bach’s position was the other witness to the will. She gave evidence that the will was read aloud to Mr. Bach, and he said he agreed with the contents of it. It’s

In the result, Mr. Bach’s estate will go to Ms. Thibodeau

Thursday, May 18, 2017

Sabey Rule LLP Seeks Solicitor

Our firm, Sabey Rule LLP, is looking for a junior associate lawyer, interested in practicing primarily as a solicitor in the areas of real estate, estate planning and administration, and business law, to join our firm. The ideal candidate will have between two and five years of experience.

We are a six-lawyer firm, based in Kelowna, British Columbia, with a diverse client base, and a practice emphasis on estate planning, administration, and related litigation. We also have practices in the areas of real estate conveyances, business law and strata law.

For those of you who live outside of Kelowna, consider some of the advantages of law practice here. We have a collegial bar, a growing economy and community, significantly more affordable housing than is available in greater Vancouver, the University of British Columbia Okanagan, hiking, boating and skiing.

I encourage interested applicants to send their resume to our firm, care of Keith A. Sabey,

Saturday, May 13, 2017

Forbes v. Millard Estate: Court Applies Anti-Ademption provision of the Wills, Estates and Succession Act

One of the pitfalls of leaving specific property to a beneficiary in your will, is that you might not own that property on your death. You may specify in your will that you are leaving an item of sentimental value to your niece, or you may specify that you are leaving property of substantial value such as your home to a child. But what happens if on your death, you no longer own any property of that description? In many cases, the gift is said to adeem, which means that your beneficiary does not receive the property, or anything in substitution for the property (unless you provided a substitute gift in your will).

There are exceptions. One of those exceptions is set out in section 48 of the Wills, Estates, and Succession Act. The purpose of this provision is to provide for a financial gift to a beneficiary of specific property, when that property has been disposed of by someone acting on behalf of the will-maker, rather than by the will-maker himself. This anti-ademption provision applies when the will-maker becomes mentally incapable of managing his own affairs, and his attorney under an enduring power of attorney, or court-appointed committee, decides to sell the property that was subject to a specific gift in the will. Section 48 reads as follows:
Relief from disposition of property
48  (1) In this section,“proceeds” means the gross proceeds at the time of disposition, and includes
(a) non-monetary consideration, and
(b) in the case of a gift, the fair market value of the gift.
(2) If property that is the subject of a gift in a will is disposed of by a nominee, the beneficiary of the gift is entitled to receive from the will-maker's estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount.
(3) Subsection (2) does not apply if
(a) the disposition is made to carry out instructions given by the will-maker at a time when the will-maker was legally capable of giving instructions, or
(b) a contrary intention appears in the will.

Mr. Justice Blok’s decision in Forbes v. Millard Estate, 2017 BCSC 361, illustrates how section 48 works. Helen Millard made a will on September 5, 2000. In her will, she left her daughter, Cherie Forbes, “any property which I may own and be using as a home at the date of my death.” When she made her will, Ms. Millard owned a home on Hornby Island, British Columbia, which he later sold. She purchased a new home in Courtney, British Columbia. Sadly, her mental functioning deteriorated to the point where she could no longer manage her own financial affairs. In September 2005, her other two children, Maureen Bryce and Richard Millard, acting as her attorneys under an enduring power of attorney sold Ms. Millard’s home in Courtney to pay for her expenses. When she died on February 9, 2015, Ms. Millard no longer owned a home.

Ms. Forbes applied to court for a declaration that she is entitled to the sale proceeds of the Courtney home pursuant to section 48.

Ms. Bryce and Mr. Millard argued that because section 48 did not come into effect until March 31, 2014, after Ms. Millard made her will, and after they sold the Courtney home, the anti-ademption provision does not apply in this case.

Mr. Justice Blok held that section 48 does apply, because under the transition rules of the Wills, Estates and Succession Act, the relevant date for determining whether section 48 applies is the date of the will- maker’s death. Because Ms. Millard died after March 31, 2014, section 48 applies, and Ms. Forbes is entitled to the sale of the Courtney home.

Wednesday, April 19, 2017

Supreme Court of B.C Decision Lends Support to Use of Multiple Wills to Reduce Probate Fees

A recent Supreme Court of British Columbia decision has lent support to the strategy of reducing probate fees by making two wills in British Columbia, one that deals with those assets that may be transferred to your personal representative without a grant of probate, and the other that deals with assets requiring a grant of probate. This strategy of probate fee reduction has been successfully employed in Ontario, and because of wording changes to the legislation in British Columbia when the Wills, Estates and Succession Act came into effect, is utilized more frequently in British Columbia. 

Suppose you own shares in a company that is not traded on a stock exchange, and the company is used for a family business. Let’s say your interest in the company is worth $10 million. You also have a house in your own name, worth $700,000 and some investment accounts worth $1 million. You then have two wills, one of which deals with your interest in the company (we will call it the “Secondary Will”), and the other which deals with your other assets, including your home and investment accounts (the “Primary Will”). You name a different executor in each of the wills (an important detail in British Columbia). 

On your death, your executor of your Secondary Will does not apply for probate; the shares may be transferred into his name as the executor without a grant of probate. But the executor of your Primary Will, for which a grant of probate is required to transfer the assets into her name as executor to deal with them, probates that will. The executor of the Primary Will pays probate fees on those assets, but not the company. If the executor of the Primary Will is not required to pay probate fees on your interest in the company, and the executor of the Secondary Will does not need to probate the Secondary Will, then this will save $140,000 in probate fees (really a probate tax if the government were honest about it), when contrasted to the probate fees if you had only made one will.

In reasons for judgment issued on April 13, 2017, in Berkner(Estate), 2017 BCSC 619, Master Wilson held that an executor of a will dealing with some of the will-maker’s assets, the Primary Will in our example, without applying to probate the Secondary Will.

Master Wilson set out the background as follows:

[1]             Norman Frank Berkner (the “Deceased”) died on February 24, 2016. He was predeceased by his spouse and left one child, the applicant, Shelley Dorothea Berkner.
[2]             The Deceased’s estate plan utilized two wills, both dated January 28, 2016. The applicant is the executor under what is referred to as the Primary Will, but is not the executor under the Secondary Will as she renounced her executorship. The executor under the Secondary Will is an accountant, Mr. Robert L. Gruber.
[3]             This application is for a grant of probate of the Primary Will only.
[4]             The Secondary Will identifies those assets that comprise the Secondary Estate at paragraph 4(g) which provides as follows:

4.   In this Will:
      (g)  “Secondary Estate” means collectively:
            (i)   all Private Businesses;
            (ii)  any assets held in trust for me by the Private Businesses;
            (iii) any beneficial interests I may have in any trust for which a Grant is not required for a transfer or realization;
            (iv) any interest I may have in any real property for which a Grant is not required for the transfer or realization;
            (v)  all articles of personal household and domestic use or ornament belonging to me at my death for which a Grant is not required for a transfer or realization;
            (vi) any amounts owing to me from my children; and
            (vii)      any other assets for which my Secondary Trustee determines a Grant is not required for a transfer or realization;
            but excludes my property comprising my Primary Estate; provided that my Secondary Trustee may exclude an asset from being part of the Secondary Estate, in which case it shall become part of the Primary Estate;
      (h)  “Private Businesses” means and includes all securities of private companies or partnerships (which, without limiting the generality of the foregoing, shall include shares, bonds, debentures, notes, receivables, book entries, amounts owing to me, investments in and all other interests in private companies) I may own legally or beneficially at the time of my death and “private companies” for the purposes hereof including, but not limited to, the following:
            - Berkner Egg Farms Ltd.;
            (the “Company”), and any company which is a successor to the Company, or has amalgamated or as a result of any reorganization become a part thereof, and does not include any shares or other interest I may own of a publicly traded company;
[5]             I understand the deceased’s interest in Berkner Egg Farms Ltd. to have significant value.
[6]             All of the deceased’s assets that do not form a part of the Secondary Estate fall under the Primary Will. Although this application is for probate of the Primary Will, no application has been brought, and I infer no application is contemplated, for probate of the Secondary Will. The applicant applied for probate of the Primary Will by way of desk order in the ordinary course, but the Registry required that the matter be spoken to, a process contemplated by Rule 25-4(6)(b) of the Supreme Court Civil Rules.
[7]             The applicant submits that she should be granted probate of the Primary Will because:
a)    a will maker is permitted to make more than one valid will;
b)    a personal representative is not required to probate a will;
c)     in the absence of any rules or legislation that prevents multiple wills or requires that all wills be probated, she is entitled to the order sought.
[8]             For the reasons set out below, the applicant is granted probate of the Primary Will.
Master Wilson agreed with the applicant, represented by Geoff White, that a will-maker may make more than one will, and there is no requirement to probate a will. In granting the application to probate the Primary Will, without applying for a grant of the Secondary Will, Master Wilson applied the Ontario decision in Granovsky Estate v. Ontario, 1998 CanLII 14912, as follows:

[18]         The applicant says that since multiple wills are permitted at common law and there is no obligation on the part of Mr. Gruber to apply for probate of the Secondary Will, the applicant is entitled to the order granting her probate of the Primary Will.
[19]         In Granovsky, the dispute was between the administrator of the primary will and the Province of Ontario on the question of whether probate fees were payable on the entire estate. At paras. 23 and 26 of Granovsky, the court considered the legislative scheme in Ontario and concluded that multiple wills are permitted in Ontario, that limited grants of probate are available and there was no need to probate the second will:

23.        The estate planning of having multiple Wills in the form of a Primary Will and a Secondary Will which take effect on death is, in my view, simply another example of how a careful testator plans to have her or his estate pay the least possible probate fees on death. There is no legal obligation to obtain probate and, as I have noted above, limited grants are permissible. If the directors of the private companies in which the deceased owns shares or has an interest at death do not require the formal grant from the Court to deal with the transmission of the assets and are prepared to deal with the estate trustees named in the Secondary Will, why then should the estate have to pay probate fees on those assets?

26.       … In my view, there is no legislative prohibition against asking the Court for a limited grant of the deceased's Primary Will and I find that there is no requirement for the Estate Trustees to submit the deceased's Secondary Will to probate or to pay probate fees on the value of the assets governed by it.
[20]         The question of probate fees is not before me on this application, and no notice of this application was provided to the Province of British Columbia.
[21]         Turning to the legislation of this province, I find support for the applicant’s position that she be entitled to a grant of probate over what amounts to only a portion of the deceased’s estate can be found in s. 136 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, which states:

136      A representation grant, whether or not power is reserved to another person to apply for a subsequent representation grant, gives to the personal representative exclusive authority to administer the estate or that part of the estate to which the representation grant applies in accordance with its terms.
[Emphasis added]
[22]         In my view, this section contemplates that a grant may be issued for something less than the entirety of the deceased’s estate.

Subject to Master Wilson’s comment that the issue of probate fees was not before him on the application, this decision lends support to the view that the multiple-strategy may be an effective way to reduce probate fees on death in appropriate circumstances. That said, I am concerned that the multiple-will strategy has become a bit of the flavour of the day in British Columbia, and there are pitfalls and lots of room for error, but I will save that for other posts. 

Sunday, April 16, 2017

The Rule in Cherry v. Boultbee

If you wait too long to sue on a debt, your claim may be statute-barred by the applicable limitation legislation. But can the personal representative of a deceased person require a beneficiary to bring into account an amount the beneficiary owed to the deceased even though the limitation period for the deceased to bring a claim has expired?

The answer in British Columbia is yes.

The principle is known as the rule in Cherry v. Boultbee, and was recently applied by Madam Justice Church in Re: Johnston Estate, 2017 BCSC 272.

The applicant and the respondent in Johnston Estate were the two sons and sole beneficiaries of their father, William Leonide Johnston's will. William Johnston had lent the respondent son $70,000 in 1996 and the respondent had not made any payment since 2000. Under the applicable limitation legislation, William Johnston's claim would have been statute-barred. (There have been significant changes to British Columbia's limitation legislation in respect of debts.) The applicant, as his father's personal representative following his father's death, sought to have a debt brought into account and deducted from his brother's share.

In holding that the applicant was entitled to deduct the amount owing from the respondent's share, Madam Justice Church described the rule in Cherry v. Boultbee as follows:

[28]         The applicant relies on what is commonly referred to as the rule in Cherry v. Boultbee which provides that where a legatee of a share of the residue is a debtor of the estate, he or she is not entitled to receive his or her legacy without bringing his or her debt into account.   The rule derives from the case of Cherry v. Boultbee (1839), 4 My. & Cr. 442.  It is an equitable principle designed to ensure fairness.  The purpose of the rule was to prevent a beneficiary who owed money to an estate from receiving more than his or her fair share of the estate.  In the case of Re: Akerman, Akerman v. Akerman, [1891] 3 Ch. 212, Kekewich J. stated: 

A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it.  Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back.

[29]         The rule has been held to apply even where the debt is statute-barred: see  Re: Akerman.

The respondent argued that the rule no longer applied in Canada, citing a decision of Mr. Justice Clark in the Alberta case, Re: Moody Estate, 2011 ABQB 222. But Madam Justice Church declined to follow Moody Estate:

[36]         With all due respect to Clark J., I cannot agree with either his reasoning or his conclusion.  In my view, he begins his analysis from the premise that the “rule permits an executor to recoup the amount owing, even though the deceased would have been unable to do so.”  In my view, that is not an accurate description of the application of the rule.  The rule in Cherry v. Boultbee does not confer on the estate any right to recoup the amount owing but rather operates to ensure fairness in the distribution of an estate, recognizing that the relationship between a testator and his or her beneficiaries is typically not at arm’s length.   The fundamental purpose of the rule is to ensure that beneficiaries are treated fairly and it embodies the principal that he who seeks equity must do equity.  As the court noted in Re: Akerman, nothing is being retained by the representative and nothing is being set off but rather, the contributor is paid by what he is holding in his own hand.  The court in Re: Goy & Co Ltd. [1900] 2 Ch. 149, also noted that the claimant has in his own hands that which is applicable to the payment and should pay himself out of that.  The question of whether the testator or the estate can recover the debt or whether the debt is statute barred is therefore largely irrelevant to the application of the rule.  In my view, the change in approach to limitation provisions by the Supreme Court of Canada in Tolofson does not affect the application of the rule in Cherry v. Boultbee.

In the result, the respondent's debt will be brought into account when his father's estate is distributed. 

Friday, March 24, 2017

Court Orders Interim Distribution Under Section 155 of the Wills, Estates and Succession Act

In a recent decision, Davis v. Burns Estate, 2016 BCSC 1982, the Supreme Court of British Columbia allowed an interim distribution to be made to a beneficiary of a will under section 155 of the Wills, Estates and Succession Act pending the resolution of a wills variation claim. Section 155 prohibits the personal representative from making a distribution after someone has started a wills variation claim without the consent of the Court. As far as I know,  this is the first reported decision dealing with an interim distribution pursuant to section 155, although there were cases under the now repealed Wills Variation Act considering whether to allow an interim distribution under that Act (which contained a prohibition on distribution during the first six months following probate, but did not expressly prohibit a distribution after the six-month period if a claim had been commenced).

Patricia Burns died on March 17, 2015. In her will dated October 23, 2010,  she left 20% of the residue of her estate to Brent Dale, with whom she lived, and 80% to her friend George Quan, disinheriting her daughter, Leslie Davis. Mr. Dale provided evidence that he and Ms.Burns were in a marriage-like relationship.  The gross value of the estate was over $2.5 million.

Ms.Davis filed a claim under Division 6,  Part 4 of the Wills, Estates and Succession Act, in August 2015, seeking to vary her mother's will on the basis that her mother had not made adequate provision for her.

Mr. Dale asked the court to order an interim distribution of $250,000 to him. Ms. Davis opposed the application unless she too received an interim distribution of $250,000. Similarly, Mr. Quan opposed the application unless an interim distribution were made to him as well.

In granting Mr. Dale's application, Mr. Justice Greyall applied the following criteria from a decision of the British Columbia Court of Appeal in Hecht v. Hecht Estate (1991), 62 B.C.L.R. (2d) 145, decided under the Wills Variation Act:                                                                                                                                                                                                                                                                                                                                                                                                                            

a. the amount of the benefits sought to be distributed as compared to the value of the estate;
b. the claim of the beneficiaries on the testator;
c. the need of beneficiaries for money; and
d. the consent of the residuary beneficiary to the proposed transfer.

In finding that it was appropriate to order the interim distribution to Mr. Dale, Mr. Justice Greyall noted that the net value of the estate available for distribution would likely be at least $2.3 million after expenses and Mr. Dale's share would be $460,000 if Ms. Davis is not successful. If she is successful, it is unlikely that she would receive more than one half of the estate.

Mr. Dale, who was 76, had financial need, with his expenses exceeding his income of $1500 per month. Ms. Burns expressed wishes that Mr. Dale have funds available for travel were unfullfilled becuase of the dealy in distributing the estate as a result of the lawsuit.

Mr. Quan had not brought his own application for an interim distribution, and, accordingly, Mr. Justice Greyall declined to make an order in his favour, but left it open for Mr. Quan to make his own application.

As Ms Davis is not a beneficiary, she is not entitled to an interim distribution. Mr. Justice Greyall found no prejudice to her in making the interim application. She may pursue her claim to a share of the residue expeditiously.