ESTATES
Contents
PART I: WILLS 
Wills and Estate Planning
[§1.01]	Introduction	1
[§1.02]	The Devolution of Property by Will and Intestacy	1
	1.	The Function of a Will:  wills set out the scheme of how to distribute the estate and who will do it; paramount principle of freedom of testamentary capacity	1

	2.	Consequences of Dying Without a Will: intestate or partial intestacy.  Part 10 of EAA sets out the system of distribution.  If estate is of |Status Indian use Indian Act for intestate succession
		DISTRIBUTION CHART 	2
		S. 1 gives c.l. spouses full status of spouse under the ESA for intestacy	2 
		IF die w/no successors, property escheats to the Crown.  Can make appeal to have it returned on legal or moral grounds; if no claim arises for 10 yrs, the $ is that of the province	3
		Be careful of effect of gift on bens on social asssistance - need special trust	3
3.	Property Affected by Will/Intestacy: property subject to the will is said to “pass” through the estate; will include all assets over which client has complete dominion, control and beneficial interest.  Determine if client only owns the property indirectly	3
4.	Property Not Affected by Will/Intestacy:   not pass through will b/c distributed by operation of law (deemed not part of estate.)  E.g. property held by joint tenancy, life insurance w/designated ben, RRSP w/designated bens, contractual obligations, gifts, property subject to division under FRA, property subject to equity such as constructive trust [a common law wife or stepchild]	4
Formal Validity of Wills
[§2.01]	Required Formalities Under the Wills Act: must be in writing (3), signed (4)and witnessed by 2 people who are present at the same time when the testator signs the will (4c). Testator must be at least 19 years old (7); a will is not invalid because one of the witnesses is incompetent (age or mental infirmity) or because a ben witnesses it (but the gift to that person is rendered void unless there are 3+ Ws (11)); if the executor signs as a witness and they are a lawyer with a charging clause, that clause is void (11).  Formalities  not appy to status indians 	5
[§2.02]	Revocation of a Will: s.14 of WA: by marriage (unless declared in contemplation), later will, writing declaring intent to revoke, destruction by the testator or someone acting on their instructions in their presence with intent to revoke it (there is a presumption if it cannot be found and was last in the hands of the testator that it was destroyed).                                 End of marriage only voids provisions in favour of former spouse. (16)  Need judicial separation, a final order of divorce or a declaration of nullity to show end of marriage.	6
[§2.03]	Altering a Will: (a)executing a new will, (b) executing a codicil - amending instrument to existing will prepared/executed like will but only refers to provisions being altered; (c) making an interlineations - making physical changes to actual will.  Avoid interlineations: OK if made before will executed, but if made after execution, need to be attested to by the testator and the Ws.  If not, changes have no effect except to invalidate words/meanings  it renders no longer apparent (17). Law presumes made after execution.	7
[§2.04]	Reviving a Will: if revoked, 2 ways to revive: (a) by later will or codicil under WA showing intent to give effect to the revoked (part of) will OR (b) Doctrine of Relative Revocation -  revocation may be only conditional upon certain formalities being satisfied. If revocation subject to unfulfilled condition, revocation does not take effect. (Ex)	7
[§2.05]	Conflicts of Laws: Movables, Immovables and Holograph Wills:   
	39(2):  the law over immovables (land and fixtures) is the law of the land where the thing is situated; 
	39(3) the law over moveables is governed by the law of the place where the testator was domiciled at the time of death 
	BUT see 40 wrt moveables: if made outside BC but not according to WA, it’s still valid if valid (i)in the place it was made, (ii)where the testator was domiciled or (iii) their domicile of origin;                                                                                                                 E.G.:  if a holograph will (a will totally in testator’s handwriting and not witnessed, invalid in B.C) is made in a jurisdiction that allows them then BC will render it valid (such as Alberta) even if testator’s domocile at time of death was B.C.,but only wrt moveables 	7
[§2.06]	Intestacy by Operation of Law	8
	1.	Lapse: if  ben. predeceases the testator. Bequests of specific property falls into residue (21); gifts of residue pass on intestacy; gifts of residue to a member of a class of bens fall to the other members of the class. S. 29 - statutory exception to lapse is where deceased ben is child, other issue or brother/sister of deceased and deceased ben leaves surviving issue, then gift passes to issue per stirpes of deceased ben.  If deceased ben has no issue but has spouse,  gift passes to intestate successors of deceased ben - likely the spouse	8

	2.	Ademption: where there is a gift for a specific thing and that has been disposed of before death; it a gift adeems it fails and has no effect	8

	3.	Survivorship: Survivorship and Presumption of Death Act: when 2 people die at the same time the younger is deemed to have survived the older BUT Insurance Act s.72:  if an insured and beneficiary die, the beneficiary is deemed to have predeceased the insured under a life insurance policy. SPDA 2(2) says is subject to IA s.72, but unclear!!	8

	4.	Presumption of Death: if a person is missing and there are reasonable grounds to believe they are dead and order can be sought under s.3 of SPDA to have their death declared. Order = proof of death.  Any property distn is deemed final.  Cts will consider variey of circumstances before making order	9
Substantive Issues That May Affect the Validity of a Will
[§3.01]	Introduction	10
[§3.02]	Ethical Considerations: HB Ruling?:  lawyer must be satisfied before execution that the will is the real testamentary intention of the client; the lawyer should confirm the will w/testator before having it signed and try to meet privately at least for a little while.  If the client wants to leave a gift to his lawyer the client should be sent to another lawyer	10
[§3.03]	The Intention to Make a Will (Animus Testandi):  testator must possess necessary intent to make a will: (i) must understand the nature of the act of making will; (ii) be free of mental disorder and (iii)exercise genuine free choice in making the will	11
[§3.04]	Test for Mental Capacity: Banks v.Goodfellow:  test of “sound and disposing mind and memory” which is shown by an understanding of the nature of the business engaged in, a recollection of the property he means to dispose of (need not recall every item), the persons who are the object of his bounty (including those who may have moral claims - kids, spouse etc) and the manner in which it is to be distributed. Cts balance, not high standard	11
[§3.05]	Types of Cases: ways to attack a will based on mental capacity - delusions, dementia	11
	1.	Delusions: belief in the existence of something which no rational person could believe and which cannot be cured through reasoned argument.  BUT if it does not affect the property or the objects of his bounty it won’t prevent him from making a will; 	12
	2.	Senile Dementia: mental senility which develops from old age such as Alzheimer’s; the court will not likely take away the elderly’s right to make a will - advanced age or existence of disease iteslf is evidence of incapacity.  If have enough capacity to understand and appreciate the testamentary act in its different acts then it will be upheld, but being able to make a rational response is not enough	12
	3.	Dementia: during the final stages of AIDS	12
[§3.06]	Evidentiary Issues: testamentary capacity is question of degree, medical evidence is persuasive but not conclusive	13
[§3.07]	If Lack of Testamentary Capacity is Suspected: If have doubts, have a medical doctor give an opinion; have the dr present when will executed.  Doesn’t prevent attack on capacity, but makes it easier to prove capacity.                                                                                 Test for capacity is legal and not medical - focus dr attn on the legal requrements for capacity  Lawyer should: meet personally with the client, be aware of suspicious circs and keep notes on file about capacity and about all circs around taking the instructions.  Lawyer has to satisfy the court that it took all steps to make sure the will was enforceable.                                            Be aware of alcohol and drugs and drug treatment as they affect capacity                               IF the person had capacity when they gave instructions but not later,, sufficient if the person can realize they gave instructions to draft what’s before them - perhaps have them sign a draft at instructions if there is concern about this	14
[§3.08]	Suspicious Circumstances: watch for unusual dispositions, the testator being controlled, beneficiaries being involved, dependency on beneficiaries etc. - see list of 9 types of circumstances and lots more Qs to ask	15
[§3.09]	Knowledge and Approval/Undue Influence: if will was made under force, fraud or fear of undue influence brought by another person there may be a question as to requisite intention; lawyer should check that these circumstances don’t exist	                                                  The person seeking to have the will upheld has to show the testator’s capacity and that they knew and approved of the will [i.e. knew what was in the will and agrees that it is what they want]; the lawyer can satisfy this by explaining each provision and temper this to the client (blind? Illiterate?)  Good to have Cx explain back his understanding	17
Preparation of the Will
[§4.01]	Drafting Wills: solicitor is not a scribe!	18
[§4.02]	Taking Instructions	19
	1.	Setting: receive instructions directly from the client without the beneficiaries present if possible (exception is spouses doing complementary wills). Use setting conducive to Cx being able to freely express needs and concerns	19

	2.	Notes of the Interview: keep these for challenges based on capacity or negligence	19

3.	Ascertaining the Assets and Liabilities: rNeed info re: Cx interest in assets Q: rely on client or not? If they won’t tell you what they own tell them you cannot make a will without that info.  If Indian Cx, find out if asset on reserve	19

4.	Choosing the Beneficiaries:  Advise re: different types of gifts can give
a.	Spouses: obligation to point out that the spouse and children could challenge a will under WVA; discuss any beneficiaries they are cheating and perhaps have them make a memo of reasons for their dispositions, can be considered in WVA action under s.5(1); can use a life estate so that spouse can’t use it on a new spouse but goes to kids; do a rollover?; 
b.	Children: there is also the option of trusts for children – will it be given over when each reaches the age of maj or when the youngest child does (with the idea that the trustee can spend money out of the general trust as each child needs and then divide equally when child reaches age of majority?; if it doesn’t specify child will take at  AOM
c.	If postponing inheritance until a certain age, it must have a gift over to prevent Saunders and Vautier (if there is a possibility they may not reach the age) or else kid can request $ on AOM (provided no other bens, no conditions)
d.	If client gives to a charity make sure the name is right and restrictions set out
e.     If Status Indian: real property on reserve only transferable to 3P entitled to reside on reserve
f.	Trust? Could be used to income split because it pays taxes progressively also	20

	5.	Tax Considerations: tax liability arises on death because of the deemed distribution under ITA. Also probate fees which is $6/1000 for 25,000-50,000and $14/1000 over 50,000. Note where assets held: Cda v. US. Note whether Status Indian w/assets on reserve	21

6.	Choosing Executors and Trustees: 
-	executor is responsible for distributing the estate, fulfilling testator’s wishes, paying debts and burial. should approach before will executed; 
-.	if the trust is big or lengthy, appoint more than one person as executor and trustee
	-appoint alternatives 
-      can make an executor for your will and another person executor for a will of which you are executor; can have specialized executors for difficult functions; 
-      if there are multiple executors: acts done by one about personal property are binding on all, in respect of land, unanimity is required and unanimity is required for trusts; 
Different executors to choose from:
i. Spouse - if going to leave estate to spouse, may be easiest to appt them executor; also if life tenant, appt as one of execs.
ii. Children - adult children can be execs, adv of naming kids as execs to reduce admin costs, but are other factors e.g. can they agree, age of child, conflicts of interest?
iii. Close Relatives - such as sibling/their spouses.  But maybe don’t make the executor the same person as a guardian; 
iv.  Bus Associate/Professional Advisor - avoid conflict of interest, suggest provision that professional be entitled to normal accounting/legal fees in cnnxn w/estate as well as compensation for acting as exec. Put in a provision in their will for an executor of their professional responsibilities so that their executor does not have to do it	
v. .Executors for Foregin Assets- some foreign jurisdictions may not allow BC exec to deal w/foreign assets
vi. . Corporate Executor - a trust co can be appointed if there are assets which require skill or expertise or the administration would be too big of a job, there are conflicting interests, there is a very lengthy trust or the need for total security
Executors are entitled to compensation under the Trustee Act or through a private fee agmt

	7.	Guardians: under Infant Act s.50,  a parent can appoint a guardian through a deed or will but this guardian can appoint another one so parent should appoint a substitute. Can be guardian of person and/or estate. If none, Director of Child, Family, and Community  Services is guardian of person and Public Guardian is guardian of estate	25

	8.	Enduring Power of Attorney, representation Agreements; adult guardian leg’n:  deal with Cx’s diminished capacity over time. Enduring Power of att, Rep Agr: authorize 3P to make decisions re: $ etc if Cx loses capacity.  Rep Agre is best tool to deal with health care issues but other ways possible to avoid complexity and cost of Rep’n Agr
		Enduring Power of Att (Power of Att Act s.8): Cx appts 3P as attroney, endures despite mental incapacitation whereas at c.l. power of att ends w/incapacity.  Cheaper than getting appt under adult guardianship leg but note that agent can’t be compelled to act
		If Status-Indian, who may be incompetent, MIA has authority over their property	25-6

	9.	Memoranda:  if Cx wants to dispose of large number of personal articles that doesn’t want to include in will.  Must be in writing and signed by the client before the execution of the will, should be incorporated by reference and if it is changed the will has to be amended according to WA; if not binding need not be incorporated and can be amended freely 	27

[§4.03]	Special Circumstances Requiring Special Provisions	27
	1.	S 16 of the WA: provisions made in favour of spouse will be void if there is a final order of divorce, judicial separation or decl of nullity, unless contrary intent in will	27

	2.	Will Made in Contemplation of Marriage: a will is revoked by a subsequent marriage (WA s,15) unless it is stated to be made in contemplation of the marriage to the spouse	27

	3.	Wills Variation Act:  s.2 if  deceased failed to make adequate provision for the proper maintenance and support of the spouse/child, they can apply to the ct to make provisions out of the estate; 5(1) the ct can consider any written reasons by the testator	27

	4.	Homestead or Dower Legislation: not in BC but if domiciled in a jurisdiction where it exists consider effect on ability to alienate property freely	28

	5.	Restrictions on Alienation: are there anyn - on moveables or immoveables?	28

	6.	Life Insurance Declarations: Insurance Act, s.29 - designate ben through declaration -  instrument in writing, incl will.  Best to have the declaration in insurance policy because if it is in the will and the will is subsequently revoked, the designation will also be 	28

	7.	Registered Retirement Savings Plans and Similar Assets: Law and Equity Act, ss. 46, 49-51 allow to designate a beneficiary for certain plans  - s.46, certain designations can’t be made by will - but be aware that some pensions make it go automatically to the spouse if there is one.  See e.g. Pension Benefits Standards, e.g. ss.34, 35	28

	8.	Charitable Gifts: make sure the org is registered with Rev Canada and that you have the name right and to include a clause that relieves the PR from monitoring the gift	29

	9.	The Rule Against Perpetuities: (a) C.L. Rule:  can’t have future interest if it won’t vest w/in 21 years of death of testator or of life-in-being.  Gift must vest w/in life-in-being plus 21 years. See ex.
		(b) Perpetuity Act: can wait and see if vesting occurs w/in time allowed by c.l. rule - s.9  If not then it falls into the residue of the estate. Future interest deemed valid                  The PA allows you to specify an 80 year perp period (s.7) but must specifically incl it, BUT the act does not apply to immovables outside BC, so best to adhere to c.l. rule	29

	10.	Termination, revocation, and variation of Trusts:  (a) Saunders v. Vautier Rule:  trust can be terminated if trust gives bens absolute vested gift adn directs t’tee to pay Y to bens or accumulate it.  If all bens agree, are of AOM, and have mental capacity, may require t’ee to pay out early, don’t even need court order, but if unsure, get one
		(b) Trust and Settlement Variation Act: any one or more persons interested in trust can apply to ct to vary or revoke trust on behalf of minor, etc. Ct must be satisfed that arranagment will benefit incapacited, unborn, unascertained bens for whom application is made (s.2): pruden adult movtived by intelligent self-interest	30

	11.	Beneficiaries who are Receiving Disability Insurance: If person is receiving BC disability benefits has more than $3000 in assets (with some exceptions – car, principle residence, and if have kids allowed $5000 plus $500 each kid) then becomes ineligible for disability pension.  Exception to this rule is if the funds are held in TRUST and expenditures are used for medical devices, care service, education/training, renovations to accomodate disability, promote independence. Latter is broadly interpreted. Funds should be paid directly to the service instead of the beneficiary. Beneficiary can be their own trustee provided trust not more than $100,000 - non-discertionary trust. If trust > $100, 000 or if ben easily manipulated, appt t’ee  - discretionary trust.	31

[§4.04]	Planning the Will	31
	1.	Planning for Contingencies: be sure the will covers all possible deaths	31
	2.	Use of Language: be consisten; avoid ambiguity; use techinical words properly, etc	32

	3.	Numbering, Headings and Order: number paras; insert provisions in logical sequence - e.g. specific gifts given before allowing the executor to convert unauthorized investments into $,  specific gifts of $ after power to convert assets to $; gifts from residue after specific gifts	33

	4.	Outline of a Typical Will: see list!!	33

	5.	Planning the Dispositive Provisions: when refer to beneficiaries by name or legal relationship, get it right! Lawyer should consider things like deaths, adoptions/births, divorce, mental breakdown, young people etc. Should contemplate whether to insert survivorship period for outright gifts to avoid cost of double administration of gifts if ben in accident with testator and dies as a reslt. Common periods are 10, 30, 60 days.    When create trusts, consider distribution of Y and K., best to divide K into shares and not % b/c that way of one dies the others just split the share and there is no partial intestacy	34

	6.	Capital and Stirpital Distributions: per capita: if a beneficiary dies their share goes to the other living beneficiaries and not to their beneficiaries; per stirpes: if a beneficiary dies, it gets distributed between each line of lineal descendants of ben and this can be limited to a certain number of lines.  See diagrams p.36	35

	7.	Will Provisions Relating to the Executor and Trustee: must specifically empower trustees to be able to purchase assets from or sell assets to estate; if remuneration not proviided for, will be provided by ct via s.88 of TA; good to state that they can employ experts (like accountants) and incl indeminification clause; state that any gifts to the Exec are given unconditionally and not as a basis of them acting	37

	8.	Common Drafting Pitfalls: define classes properly; address what happens if gift adeems, when make gifts to infants, specify what should be  done with money is going (goes to Public Trustee then)	37
[§4.05]	Execution of the Will: ensure the Ws are not transient and that they include their name, address and occupation – See [2.01].  	38
[§4.06]	Office Procedures	38
	1.	Wills Notices: After execution, should file notice filed with the Division of Vital Statistics and gives the place and date of the last will. (Not mandatory)	36

	2.	Wills Storage: must be free from risk of accidental loss or destruction; if you keep make sure cx knows that you will not be keeping them apprised of the law and insist on (1), should maintain wills index so can ascertain if are storing particular will when asked	39
3.	Reporting to the Client: set out that the will is done and you have no further obligations	39
4.	Destruction of Prior Wills and Will Files: can be destroyed only once revoked unconditionally by a later valid will. Don’t destroy file til Cx is dead and limitation period for WVA claims has expired                                                                        	
5.	When Should a Solicitor Release a Will From Safekeeping? Only upon written instructions from the client or from the executor upon proof of identity and death of Cx
6.	Solicitor - Client Privilege: there is an exception with regards to many will communications	39
Claims That Can Be Made Against an Estate
[§5.01]	Introduction [Claims re: probate in Chpt 19] [Diff regime if Status Indian] 	40
[§5.02]	Wills Variation Act: child or spouse can seek redistribution if adequate provisions were not made for their care; this includes common law same or opposite sex couples as long as lived together for 2 yrs;cts can look to testator intent via s.5(1)- it is good practice to record the testator’s reasons in a memorandum outside the will to be revealed upon a challenge and make sure they are recorded as objectively as possible so that they can be seen as rational and valid	40
[§5.03]	Setting Aside a Will: the Probate Registrar will recognize invalid wills due to formalities - however, case law shows judicial debate over whether wills can be valid even if don’t meet formalities; proof in common form is an ex parte application  by the executor supported by affidavit evidence; proof in solemn form requires proof of the will in open court after notice has been given to all parties	41
[§5.04]	Testamentary Capacity and the Burden of Proof: primary burden lies with propounders of the will who must show it was the last will and testament of a free and capable testator; if it is rational on its face, capacity of the testator at the time of making it is presumed.  But this is rebuttable. If will is irrational the propounders must prove capacity to rebut the presumption of incapacity	41
[§5.05]	Suspicious Circumstances and the Burden of Proof:  If will made under suspicious circumstances - that doesn’t reflect true itent - propoundesr of will have burden to prove knowledge, approval and/or capacity. 
	SCC: Vout v. Hay: After proving that the will was duly executed  and that the testator knew and approved of the contents and had capacity (presumed from fact that lawyer read will to testator before signed it), there is a presumption in favour of the will; the burden then lies on the challenger to prove there are suspicious circs and if this is done the propounder must again prove knowledge and approval; all that is required is some evidence of suspicious circs (evidentiary burden)	42-3
[§5.06]	Undue Influence and Duress and the Burden of Proof: allegations must always be proved by the attacker; no presumption arises b/c of relationship b/w parties.  Attacker needs affirmative evidence to displace proof of knowledge and approval by the propounders and if there is none the attack fails; therefore usually alleged with testamentary capacity	43
[§5.07]	Where There is No Will: WVA does not apply! Goes under EAA which now includes formally married and c.l. spouses.  Must have lived together for 2 yrs immediatelyl before spouse death.  Can be more than one spouse: EAA s.85.1.  Spouses who have been separated for at least one yr, w/intent of remaining separate and apart, the former spouse gets nothing - EAA s.98(1)	43-4
[§5.08]	Common Law Rights: claims can be made by creditors and tort victims and sometimes by the estate; limitations on these claims s.59 EAA                                MUTUAL WILLS: where deceased obligated self to dispose of property in certain way. complex and uncertain but they are usually another kn to dispose of property a certain way provided both spouses make reciprocal promises; also constructive trust as remedy for unjust enrichment [consider the plaintiff’s efforts, the advantage accrued to the deceased, the deprivation to the plaintiff and the value of everything that is received or might be received] Need link b/w property and services provided.  In making monetary awards, cts can use “value received” which doesn’t factor in valude conferred on property during relationship or “value survived” which considers contribution of value	44
Malpractice and Wills
[§6.01]	Malpractice and Wills: standard of competent lawyer;  can be liable to 3P, e.g. bens.         For breach of K, time runs from when the K was executed, but for the tort claim of negligence it runs from the discovery of the injury; 
	Liability to a third party is under Hedley Byrne (negligent misstmt, foreseen reliance by 3P, and injury). The stmt must have been made by a person with special skill; the person must meet the neighbour test for proximity and then reliance and skill must be shown.  Issue more complex when lawyer has never met ben - easier to show reliance if know ben.  Cts have used duty principle from Donoghue
	Also troubles wrt proper execution of wills	46-8
[§6.02]	Common Errors: LIM PERIOD is 6 years from the date the cause of action arose (and for negligence this arises as of the date of death)	46
APPENDIX 4- sample will	70
PART II: PROBATE AND ESTATE ADMINISTRATION	
Initial Advice
[§7.01]	Introduction	75
[§7.02]	Identification of the Personal Representative: Either executor or administrator                Will usually sets out an Executor with substitutes.  If NO will, an administrator must be appointed by ct to administer estate.  If will, but no effective appt of executor, administrator must apply for grant of letters of administration w/will annexed. The people entitled to apply for letters of admin are generally those who can share in the estate; a person set out to do the duties but not called an E can apply for probate as E according to the tenor of the will	75
[§7.03]	Deciding Whether to Act as Personal Representative: Look to various factors such as potential personal liability, nature and size of assets; conflict of interest.  Advise E of onerous duties.  E can renounce appt if haven’t got involved yet.  If there are multiple Es then one can renounce or can sit back and reserve the right to get involved; must renounce in writing and unconditionally.  Once renounced, the Es rights cease - EAA s.24	75
[§7.04]	Immediate Responsibilities of a Personal Representative	76
	1.	Disposition of Remains:  E controls the disposition of the remains jnder s.51 of Cemetery and Funeral Services Act. This right is over the spouse or other relative, but in practice, family deals with it.  Deceased’s preference is binding, s.53 of CFSA.  If PR undertakes to do it and doesn’t, liable under CC s.182.	
	2.	Care and Management of Assets: take steps to safeguard assets; PR cannot make personal use of them. See LIST on p.76	
	3.	Dealing with Liabilities: review debts and liabilities and decide what/how  to pay	
	4.	Preparing to Administer the Estate: identify beneficiaries and next of kin and get their info; open a bank acct	77
	5.	Accounting and Expenses Prior to the Grant: duty to keep proper records and be ready to account to the estate; if the expenses are properly incurred there is a rt to indemnity. Risky to spend $ before grant of probate/letters of admin, esp wrt latter b/c administrator can’t bind estate except for funeral expenses.	77
	6.	Safety Deposit Boxes: PR must attend and make an inventory (EAA s.118) before anyone can access even if held jointly. After inventory normally can only take will	77
[§7.05]	Preparing to Make the Application for Probate or Administration	77
	1.	Gathering Information: (a) Order a wills notice search, make sure to search under correct names; (b)get tax returns, ensure was filed (c) CPP, (d)life insurance - contact insurer & initiate claim (e) RRSPs (see any designations and see if they conflict with the will)	78
	2.	Reviewing the Will and Advising on Its Terms: check for formal validity; look for indications that something has been attached (never remove staples); review gifts that may be void, revoked, lapsed. May be gift to E, note that will presumed is in place of remuneration	79
	3.	Intestacy: if not will, get advised	79
	4.	Choice of Applicant for Letters of Administration: usually person w/greatest interest in estate. Consents will be required from all people who will receive under the will.  Person applying may have to post bond; the court can appoint whomever it wants if it is necessary (EAA s.7); committe may consent on behalf of mentally incompetent	79
	5.	Other Grants of Administration: special circs such as when the administrator dies part way thru or the estate is small	79
	6.	Survivorship, Presumption of Death, and Murder: SPDA s.2(1)presumption that youngest survives longer; IA s.72 presumption that beneficiary under life insurance dies first; if 2 Acts conflict, consult ct.  If missing, can make order under s.3 SPDA re: preumed dead. If convicted of murder or manslaughter, barred from inheriting from the victim	79-80
	7.	Other Duties and Powers of Executors and Administrators: 
		(a) where 2+ PR: need unanimity for real estate and if t’ees.   Wrt personal prop one can bind all;
		(b) Duty to convert wasting assets: subj to will, duty to examine assets/investment w/view to maintaining and preserving value and to convert assets that don’t qualify as investments.   
		(c) Power to sell assets: at c.l., a PR should have the power to sell assets to satisfy debts; also in EAA s.78. Unclear if have this power there not needed to pay debts and not authorized specifically in will.
		(d)Payments for Infants: to make payments out for the education and maintenance of children out of Y of trust property held til AOM (TA s.24) Only pay K w/ ct order
		(e) Defending actions in personal capacity:  PR can defend in their personal capacity and if didn’t fuck up, can be indemnified. Can’t be in action where opposing estate	80
	8.	Scope of Solicitor’s Retainer: determine this. Which are lawyer’s duties and which are PR’s duties.	80
	9.	Insolvent Estates: an appointment of a trustee of bankruptcy ousts the E. If E acts for insovlent estate under EAA takes risk of no payment. Diff for Status Indians	81
[§7.06]	Official Administrator: if there is a house or BC assets and no one will be the administrator the Official Administrator must do so - EAA s.40. This is Public Guardian and T’ee 	81
[§7.07]	Public Guardian and Trustee: for minors and patients with committees, Pub Guardian and T’ee may obtain letters of admin - EAA	81
Devolution of Assets
[§10.01]	Types of Assets: (a) assets that are property of deceased and will pass by will or on intestacy; (b) assets that my or may not have been deceased’s property but that won’t pass b/c of operation of   law, statute, K.	87
[§10.02]	Assets That Do Not Pass to the Personal Representative	87
	1.	Joint Tenancies: if Tenancy In Common, the share passes to the estate; if  Joint Tenancy, goes to other tenant. WRT Personal Property: If no indication of taking shares, presumed to be JT, but if parties have taken shares, presumed a TIC.  WRT land, a TIC is presumed, unless intent shows otherwise.;  Must be JT in equity before beneficial interest pass to survivor.  JT can be severed by: (i)an express or implied agmt to sever,(ii)by one party transferring the property to himself or 3P, or (iii) upon a triggering event (usually with a court order under s.57.	87

	2.	Life Insurance Policies and Proceeds: can pass outside if there is a designation 	87

	3.	Pensions and Retirement Plans: if a designation is made in accordance w/plan, by written declaration (if in will, only where authori,zed), benefit doesn’t pass; Wrt pension plans – must go to spouse for pre-retirement unless none or waived and then designated beneficiary  and after retirement the member and spouse must hold it together as a joint pension payable to continue paying spouse after death; CPP – can pay to the PR for estate, to a survivor (not part) or to the survivor’s children (not part	88

	4.	Donatio Mortis Causa: can transfer property as gift upon the belief of imminent death - conditional on them actually dying (cannot do it for land) – there must be delivery and indication of change in title	88

	5.	Powers of Appointment: when donee has a general power of appointment they can give the property to whomever they please (including themselves); special power of appt restricts donee to particular class of bens - excl donee	88

	6.	Employment Benefits (WCB)spouse may get 3 mos unpaid wages – not part of estate	89

	7.	Contractual and Other Obligations: rights and obligations under ct orders and Ks entered into during lifetime provided they survive death	89

	8.	Insolvent and Bankrupt Estates: if a receiving order is made the assets go to the trustee iin bankruptcy, PR has no further standing
	
	9.	Statutory Benefits: statutory benefits that may become payable to spouse, children or other dependants e.g. FRA are not part of estate
	
	10.	Voluntary Payments: payments be emp’r in recognition of the employee’s services 
	
	11.	Family Assets: upon a triggering event in FRA s.56 , the portion that is the spouse’s is not part of the estate but the part that is the deceased’s is, incl portion of spouse’s estate that deceased may be entitled to.
	
	12.	Community of Property: is it a comm. of prop – look for a non-resident deceased or a deceased whose spouse lives elsewhere or if there is property in another jurisdiction [Not BC issue] 
	
	13.	Interests in Trusts: if trust interest, the trust doc may indicate if the estate gets it	
[§10.03]	Assets That Pass to the Personal Representative: real property vests in PR from the moment of death if there’s a will and if intestate, it vests in the court until an administrator is appointed	89
[§10.04]	Conflict of Laws	90
	1.	Immovables: law of the jurisdiction where it is (lex situ); if in a foreign juris, then need to get an ancillary grant or reseal B.C. grant in the different juris and if there is no will or the will is not recognized, it will devolve under the law of the place	90
	2.	Movables: under the law of the deceased’s domicile	90
[§10.05]	Situs of Assets: for tangible personal property , bearer securities, debts under seal, bonds, debentures, life insurance policies under seal is the place where they are physically located at death.  
	Note that situs of insurance policies not under seal is the place where they are payable, except if deceased resident in B.C and insurance company resident in B.C., policy is situated in B.C
	Situs of accounts is place where accounts is kept; situs of contract debts is deceased debtor’s residence; stocks is where they can be transferred at death; interests in trusts is palce where they are administered; interests in business is the place where the business is principally carried on.  CSB is place where existence is documented	90
Applications for Probate and Administration
[§11.01]	Introduction - where matter not contentious; will validity not an issue	91
[§11.02]	Jurisdiction:   BC Cts have juris if the deceased was domiciled or had assets in BC at the date of death; domicile of infant will be that of the parent with whom they reside; can create a domicile of choice by residing there permanently and having an intention to do so; if that domicile stops and new one doesn’t emerge, the old one is the domicile of origin.  EAA gives SC jurisdiction for administration of estates	91
[§11.03]	Practice: governed by the SCR, Rule 61governs procedure and docs required for admin and probate of estate where no contention. Also EAA, s.110	91
[§11.04]	Place and Time of Application: an application can be made in any registry in the BCSC regardless of residence. SCR 61(2) Subsequent grant  must be made where the original grant was issued - EAA s.15	91

Transmission and Transfer of Assets
[§13.01]	Introduction - procedure required for transmission of assets from deceased to PR and transfer of assets from PR to heirs.	103
[§13.02]	Executor’s Year: allowed one year to get in assets and settle affairs of estate; they cannot be compelled to pay a legacy before expiry of this period. Unless specified otherwise, the legacy only carries interest after the year - at 5%	103

[§13.03]	Legislation Affecting and Transfer of Assets	103

	1.	Wills Variation Act: spouse/child can bring actionn if feels will doesn’t adquately provide for proper maintenance/support.  Must be brought within 6 months of date of issue of probate of will. 
		S.12: PR can’t distribute assets to bens unless there is consent from all people authorized to apply or if authorized by the court; if prop is transferred during this period it will be subject to a claim under the WVA and the beneficiary cannot sell during this period unless satisfies the LTO that no claims will be made; 
		PR may not know if action commenced; advisable to LTO searches at end of 6 mos; if the PR sells the land for debts, it is not subject to the claim, but the proceeds are	103

	2.	Income Tax Act: if assets are transferred before the cert is given by CCRA that all taxes/interest/penalties are paid [clearance certificate], the PR can be personally liable; so either PR should not pay til have cert or reserve sufficient assets; can be a cert at day of death and one on final distribution	104

3.	Estate Administration Act: 
a.	s.74: when intestate, surplus cannot be distd for 1 year except to dependants and at the discretion of the Public Trustee; 
b.	‘hotchpot’ - legal presumption that if testator makes gift to kid in will and later gives money, no intent to give $ twice. Wills either adopt or negative presumption. S.92 EAA - hotchpot provision for intestate eastates.  Advances to children in intestacy will be deducted from their share	104
c.	Common law spouses - s.85.1: if 2+ spouses, share estate in  proportions determined by ct to be just	104
Creditors
[§14.01]	Introduction- re:l awyer advising PR wrt  creditor’s claims	108
[§14.02]	General	108
	1.	General Duties of the Representative Relating to Creditors’ Claims: (a) to ascertain liabilities and retain sufficient assets to pay them, (b) to perform all K made by decesased and enforceable against estate; (c) pay liabilities with due diligence	108

2.	Types of Creditors’ Claims: 	
a.	Liabilities:   secured, preferred or ordinary; arise 3 ways: 
	(i)incurred by deceased and enforceable against him prior to death are the responsibility of the PR. Creditor brings claim w/PR as DF [SCR 5(17)].  Can enforce judgment against estate but not PR personally; 
	(ii)PR is personally liable for liabilities incurred in respect of death but can be indemnified for them from estate, e.g. funderal expenses
	(iii)expenses while administering the estate - PR entitled to incur these	108

b.	Claims based on Improper Perf of Duties: 
	(i)if under a trust to pay a liabilitiy and they don’t the PR could be personally liable [such as burial expenses set out to be paid in the will] 	108
	(ii)devastavit  - if PR fails to perform duty to administer estate w/due diligence can be personally liable	109

	3.	Defences to Creditors’ Claims: can use any defence deceased could have used if still alive; can also claim plene administravit – that the estate had no assets at date of death or that the PR has duly administered the estate and no longer has any assets; also s.96 of the Trustee Act empowers the court to relieve the PR from personal liability arising out of breach of trust and devastavit if they acted honestly and fairly. See Qs from  SCC	109
[§14.03]	Liabilities of the Deceased	109
	1.	Contingent or Continuing: PR must provide for all liabilities incl: contingent - could arise, such as personal guarantees, pending lawsuits, a claim against the deceased that was threatened or contemplated  - and continuing - support, lease, mtg and guarantees	109

	2.	Unenforceable or Statute-barred: PR should not paid claim if statute-barred or past limitations	109

	3.	Family Creditors: a relative or household member who asserts K claim has numerous obstacles to prove it to the satisfaction of the PR and the court	109

	4.	Pledges: an outstanding commitment by the deceased to make a gift or donation is unenforceable and must be dishonoured unless under seal or suff consideration	109

	5.	Spousal and Child Maintenance: any support arrears at death are owing; if there are future payments owed the child will rank as an ordinary Cr of the estate and the claim must be paid before payments to the beneficiaries. Generally support payments do not survive death 	110

	6.	Creditor or Debtor a Beneficiary or Executor: 
		(a) Creditor a Ben: if Cr gets legacy equal or greater than the debt, presumed to be in satisfaction of the debt unless shown otherwise; if less than the debt, no presumption and no partial satisfaction; if presumption, only need to pay legacy, if not, must pay legacy and debt. For presumption, debt must exist when will made.   See p.110 for facts to rebut
		(b)Debtor as Ben:  No presumption of forgiveness, but might be apparent on face of will
		(c)Creditor as Executor: PR/creditor can pay themselves fully, but must look to defenses
		(d) Debor as Executor: Extinguishes the debt but leaves the executor liable to account as if the debt had been paid	110
[§14.04]	Liabilities Relating to the Death: CFSA adopts c.l. position that E bears primary responsibility and financial liability for disposition of the remains; only reasonable expenses get indemnity from next of kin if funeral is more costly	110
[§14.05]	Liabilities Incurred by the Personal Representative: PR is personally liable on Ks they make to carry out the responsibilities of the position; will be indemnified for proper testamentary expenses and this takes priority over all liabilities except funeral and in rem claims by secured CRs; PR must accounts for all payments out of the estate assets; and the PR can be indemnified for new trade debts as long as authorized to carry on business	111
[§14.06]	Administering the Liabilities	111
	1.	Instructions and Retainer: get PR to bring in all info re: deceased’s liabilities	
	2.	Searches and Inquiries: identify all of the liabilities. Lawyer write letters; do searches; can advertise for claimants under s.38 of the Trustee Act but if they claim after the advertised deadline but before being statute barred can still enforce the claim against the estate or the other CRs if the claim makes the estate insolvent or the beneficiaries or intestate successors	111-2
	3.	Proof of Claims: EAA s.65 -an E can pay any claim if proved with sufficient evidence; if the PR denies the claim, EEA s.66 - the CR has 6 months from the notice if the debt is due otherwise 6 mos from when the debt is due	112

		TAX CONSEQUENCES RESULTING FROM THE DEATH OF A TAXPAYER

[15.01]		Duties of Executors, Administrators, and Trustees	114

1.	Returns: 
a.	What and When to File: PR must file a terminal tax return covering from Jan. 1 until the date of death;  Oridinary T-1 Return, file by later of 6 mos from death or April 30. Get  18 mos for spouse trust but interest accrues	114
	-PR may choose to file separate returns for things like partnership income or testamentary trusts to lower the tax paid; can also file a return for “rights or things” which includes income that is owed and the TP has an absolute right to on death but which has not yet been received and this must be filed within 1 year or from date of Notice of Assessment	114

b.	Taxation of property held at death
	(i)Non-depreciable Capital Property - ITA a.70(5)(a): non-depreciable capital property is deemed disposed of at FMV before the time of the deceased’s death unless a roll-over (transfer to spouse, trans. farm prop to kids etc) possible	115
	(ii)Depreciable Capital Proprety - ITA s.70(5)(a): depreciable capital property is also deemed disposed of at the FMV immediately before death and this could result in recapture of CCA or realization of terminal loss. Exceptions re: certain transfers as in (i)
	(iii)Land inventory (s.70(5.2)(c): land inventory (land as part of inventory) is also deemed disposed of immediately before the death of the TP at FMV (such as property held for speculation) unless the land is transferred to a spouse (as in i, ii)
	(iv) Principle Residence: deemed disposition at FMV right before death, but no realization of gain or loss as long as principal residence throughout
	(v)Other Properties: ss.70(5.1), (5.2): eligible capital or resource property....
	(vi) Joint Tenancies: if held in JT, held 50% each.  Can avoid probate fees  BUT not tax unless the joint tenant is the spouse

c.	Deductions:
	(i)Capital Losses (s.111(2)):capital losses in excess of capital gains can be applied to other Y from other sources (exception to usual rule that only applicalbe against capital gains) After that they can be carried to previous years (first CG then other sources of income)
			(ii)Charitable Donations: deduction limit is 100% of deceased’s Y for year of 	death. If not fully used can be carried to the previous year and used to 100%	116
		d.	Personal Exemptions: full personal tax credits can be claimed regardless of when 	in year he dies	116
		e. 	Reserves: amt kept back from Y reported by taxpayer. None allowed in   terminal  	year except when amt receivable transferred in consequence of tp’s death to  	spouse, c.l. partner, sp/c.l. trust.	116

	2.	Prior Year's Returns Not Filed: must also file the previous year’s return w/in 6 mos	116

	3.	Clearance Certificates: certificate that all taxes have been paid - must receive before distributing any property under PR’s control and if this is not done, then the PR could be personally liable for a deficit (ITA s.159(3)); a PR can elect to may in installments with interest paid, but not all types can be paid in installments	116
ACCOUNTS
[§16.01]	Introduction: the PR has a duty to account to the people who have a beneficial interest in the estate and to the CRs	120
[§16.02]	Duty to Account: the duty owed to: the beneficiaries, legatees (recipieents of specific bequests), unpaid CRs of deceased, successor trustees, and other interested persons; 
	Must give all info that the requesting party reasonable requires and be ready to do this at all times	120
[§16.03]	Requirement to Pass Accounts: Trustee Act
	S.99(1) must first do it 2 years from the date of the grant of probate/ LOA unless all parties consent or the court orders otherwise 
	S.99(2): A beneficially interested party can force an account after one year
	S.99(3): if the PR fails to do this or acctss are incomplete/inaccurate, PR may have to appear before the court to show cause why the accounts have not been passed; 
	-this delay can be avoided by getting approval of the accounts first from those to whom the duty is owed	120

REMUNERATION OF PERSONAL REPRESENTATIVES AND TRUSTEES
[§17.01]	Introduction: three main issues: entitlement, amount and procedure	122
[§17.02]	Entitlement to Remuneration: at common law the PR is not allowed to profit from the office unless authorized by the terms of the will BUT Trustee Act s.88 allows for remuneration to the PR on a gross aggregate value and care/management fee, unless (s.90) unless it has been fixed in the will or an agmt between the testator and the E or the E and benefic.	122
[§17.03]	Amount of Remuneration: if no agmt and not in will, s.88 Trustee Act sets it out (see p136) This is the max. – it is also necessary to consider factors such as time, skill, success, care and responsibility and size of the estate; PR must bear the costs of work done which should have been done by the PR.  See SCC Re Pedlar for factors in determining magmnt fee (123)	122
[§17.04]	Procedure: remuneration can be approved by the beneficiaries. If not possible, can be fixed by court order obtained by an application under s.89 T.A. or by passing of accounts under   SCR 61(58);  costs of this paid from the estate as special costs SCR 60(1)(b)(iii); 57(5)	123
[§17.05]	Expenses:  PR can recover out of pocket expense that they reasonably incurred in the admin and this can include legal and accounting fees (is justified based on the estate). Can’t recover fees for work that PR should have done himself	123
SOLICITOR’S REMUNERATION
[§18.01]	Introduction: SCR 57(3) sets out how the lawyer is paid	124
[§18.02]	Entitlement to Remuneration: lawyer’s cx is PR, not estate. PR is personally liable for lawyer fees.  PR can be indemnified for legal fees provided they were reasonably incurred and not for work that the PR should have done themselves; this debt stays with the PR if the estate cannot indemnify them; if a  lawyer is also E, in order to be paid legal fees there must be a charging clause; if no clause the partners can do work and be paid but the lawyer-PR cannot get any benefit. Charging clause void under WA s.11 if lawyer is witness	124
[§18.03]	Solicitor’s Services: see for services the lawyer does.  Services re: non-estate assets- e.g. life insurance payable to designated ben - PR can’t claim indemnity b/c not part of estate.  Services re: PR’s responsibilities – work that PR should have done and so PR must bear cost.  Actual legal services- payable from estate as long as reasonably incurred	124
[§18.04]	Assessment of Account: usually in lump sum; should set out what is in relation to the PRs duties and what is true legal services – see list for determining criteria of reasonableness of a solicitor’s fees. Procedure for assessing bill in Legal Profession Act s.70, SCR 57	125
PROBATE ACTIONS
[§19.01]	Introduction - actions before grant and actions after grant	126
[§19.02]	Actions and Procedures Before the Grant	126

	1.	Caveats:  notice to court to not allow probate to be granted or proceedings to be taken with regard to the will or estate without notice being given to the caveator.  Filed by those with an interest in property of deceased; filed after death but before a grant, caveator will be informed if application for grant is made. No grant can be made while the caveat is in force SCR 61 (38); filed in Form 75 (App A of SCR), must state grounds.  The person who wants probate can seek to have it removed by filing a notice to caveator in Form 76 Caveat expires after 6 months unless renewed by the court SCR 61(37)	126

	2.	Citations: A summons to take some action wrt will/estate, cannot be filed for 14 days after testator’s death and can be for 4 types:
		(a) to accept or refuse probate - if E fails to apply for probate, can cite E to accept or refuse probate, or show cause why the admin of the will should not be. Form 77
		 (b) to propound an alleged will -used to ignore a new will and go by the old one if the propounder does not show up  Form 79 
		(c)to bring in a will (if a person has possession – to compel them to bring it in). Form 81	
		(d)a citation preceding limited grant (when everyone else entitled to a general grant has failed to appear, consented or renounced) 	126-7

	3.	Proof in Solemn Form: where dispute over will validty, should prove will this way.  Done by petition.  Judge must be satisfied in open court and if so it is protected from future attacks; any interested person can seek this and all other people having an interest must be defendants	127
[§19.03]	Actions and Procedures After the Grant: the grant can be challenged and can be replaced (also if grantee dies, goes missing or becomes incapacitated); it is less likely to be revoked if it was proved in solemn form (there are circs such as a later will, grant obtained by fraud etc); grant can also be revoked upon grantee death – done by writ of summons and all parties named; if revoked, only void from date of revocation	127
WILLS VARIATION ACT
[§20.01]	Introduction: WVA s.2: must apply within 6 months from date of grant of probate	129
[§20.02]	Jurisdiction:	129
	1.	Requirements: (a)there must be a valid will, (b)the court must have authority over the assets, (c)must be a qualified applicant (i.e. wife, child, common law spouse and same sex partners – if divorce obtained before death the former spouse has no claim and the status of spouse is fixed at death; “Child” includes and adopted child. Nisga’a Lisims gov’t can commence proceedings for will of Nisga’s citzien if will provides for devolution of cultural property	129
	2.	Forum: any registry in the BCSC, so search some registries at least for claims and advertise for CRs, After writ issued, claimant has 1 year to serve writ	130
	3.	Limitation Period: 6 months of date of grant. WVA s.3(1)	130
[§20.03]	Procedure	149
	1.	Commencement: commenced with a writ SCR 8(13)and SOC. etc	
	2.	Parties: surviving spouse, children, all benswhose interests are affected and the E	
	3.	Representative Actions: can be brought on behalf of the parties if they are unable or have died. WVA s.2	
	4.	Special Considerations with Respect to Land: WVA s.4(2) Pl must register CPL within 10 days of writ.  WVA s.12 if property is transferred within the 6 month period,is subject to a WVA subject clause.  See also ss.4, 11, 12, 13	
	5.	Settlement: can only be done if all interests are vested and no party is under a disability -- all parties are sui juris - they can settle. Can force mediation by serving Notice to Mediate, not forced where not all interests are vested or party has disability	130
	6.	Evidence: court can accept evidence as it sees proper. WVA s.5(1)	131
	7.	The Order: lump sum or periodical WVA s.7	
	8.	Appeals, Variations and Rescissions: appeals are under s.15, variations s.14	131
[§20.04]	Role of the Executor: once commenced the E can carry on and pay duties, taxes, debts and restrictions and test expenses but NOT distribute to bens; to avoid liability do not distribute the assets until after the 6 mo period unless all people who could challenge consent or the court consents;
	Court can’t order the E to make a payment before the E’s year is up.  Ct can order legacies or bequests paid if they likely would not be needed
	If the PR wants to bring action they should step down because you can’t be both P and D	131
[§20.05]	Duty to Make Adequate Provision	131
	1.	Generally: the court can interfere if they feel not adequate provision and this will be determined by considering the objective legal obligations of the testator to his spouse and children and thesubjective  moral duties to the spouse/children. SCC Tataryn	131

	2.	Factors to Consider:  See factors!
		(a)station in life - standard of living to which testator has allowed Pl to become accustomed	132
		(b) intestacy as standard - cts unclear if consider how would divide if intestate
		(c)financial need of Pl not really a factor
		(d)future needs
		(e)Restrictive conditions in will - may not be adquate if support at t’ee discretion
		(f)claimants maintained by state - may still have to provide for them
		(g)foreign applicants - standard of living in foreign country	134
		(h) type of dependent - (i) widows generally more favoured than widowers, not prejudiced b/c 2nd or 3rd wife, but factor in quantum; (ii) widowers, legally no diff than widows, but.... (iii)Spouse - SCC Tataryn - surviving spouse should not be in worse position than if had separated - make death another triggering event?!? (iv) kids - can disinherit for good cause, no p.f. right of inheritance, claimant must prove right. Helpful to have testator memo of reasons for actions	135

	3.	Relevant Date for Determining Adequacy of Support: often use the circumstances at the date of the testator’s death	136
[§20.06]	Circumstances Precluding Relief	136
	1.	General: the court can refuse relief based on the Ps character and conduct before the deceased’s death; after death the conduct is immaterial	136

	2.	Actions by Spouses: adultery, marriages of convenience and the duration of the marriage may not bar a claim, separation agmts are often respected, even though can’t actually remove ct’s jurisdiction, depends on whether independent legal advice? Desertion by the plaintiff disentitles and divorce does not automatically disentitle	137

	3.	Actions by Children: adult children who are not dependant (are estranged) are not automatically barred; if their conduct caused a breakdown in the relationship, this could disentitle as will severe misconduct, but look also to initial testator conduct	137
[§20.07]	Determination of Quantum	138
	1.	General: it must be just and equitable	
	2.	Factors to Consider: see the factors - a-t! Incl: App of FRA; size of estate; size of family; length of marriage; station in life; hopes and aspirations; inter vivos gifts; competing moral claims; relative needs; financial circumsatances of bens and claimants	138-42