A few hours before he died of pancreatic cancer, Al Burnett transferred his farm and house near Creston, British Columbia, into a joint tenancy with his friends Walter and Anne Petrie. He also signed a will, leaving his estate to Walter and Anne Petrie, thereby disinheriting his four children. Al Burnett said in his will that he had excluded his children because he had made loans to them which they did not repay, and they had not corresponded with him or provided him comfort during his later years.
Mr. Burnett had entered into a contract to buy another property. He instructed his notary public to put the property into a joint tenancy with Mr. and Mrs. Petrie. The purchase completed after Mr. Burnett’s death.
Al Burnett’s son, Philip Burnet, challenged his father’s estate plan. He argued that his father did not have the mental capacity to make his will or transfer his home into a joint tenancy. He claimed that Mr. and Mrs. Petrie held the home on a resulting trust for his father’s estate. He also applied to vary his will under the Wills Variation Act on the basis that he did not make adequate provision for him.
Two of Al Burnett’s daughters also challenged the will, but settled with Mr. and Mrs. Petrie before trial. The fourth child, Catherine Grey, was named in the suit but did not take any position or participate.
Mr. Justice Smith, in Petrie v. Burnett, 2008 BCSC 1503, found that Al Burnett had the capacity to make a will.
Al Burnett’s doctor gave evidence that he was mentally competent, and that his cancer would not likely have affected his mental functioning. Friends also testified that he appeared to communicate and understand well.
He had told a friend that he wanted to help the Petrie’s whose house had burned down.
There were some suspicious circumstances. Al Burnett was physically very weak. The notary who drafted the will testified that Al Burnett said he had three children. He would not give him the names of the children, and the notary did not ask him about his assets.
Mr. Justice Smith held that Mr. and Mrs. Petrie met the burden on them to prove the will despite the suspicious circumstances. He did not give great weight to the fact that Al Burnett said he had three children. Ms. Grey had not seen her father in 35 years.
Mr. Justice Smith found it significant that Al Burnett said he wanted to transfer his house into a joint tenancy with Mr. and Mrs. Petrie when the notary explained that his children could apply to vary the will under the Wills Variation Act. The joint tenancy could avoid the Wills Variation Act, because the house would pass outside of Al Burnett’s estate. This demonstrated that Al Burnett understood what he wanted to achieve.
The trial judge also held that the presumption that Mr. and Mrs. Petrie held the properties in trust for the estate was rebutted. His will contained a clause indicating Al Burnett’s intent that Mr. and Mrs. Petrie would receive the properties on his death.
Philip Burnett was successful in his application to vary the will under the Wills Variation Act. Mr. Justice Smith found that Al Burnett did not have rational and valid reasons for disinheriting his children. Al Burnett’s statements in the will that his children did not repay loans and had not corresponded with him or provided comfort in his later years were not based on fact. Three of Al Burnett’s children had relationships with him, although they were not close.
In deciding what to award, considered the size of the estate, and the value of the two properties Mr. and Mrs. Petrie received outside of the estate. Although the court cannot vary gifts made outside of a will under the Wills Variation Act, the court can take these gifts into consideration when making an award.
Mr. Justice Smith estimated that the two properties were worth approximately $300,000. Under the terms of the settlement between Mr. and Mrs. Petrie and two of Al Burnett’s daughters, each of the two daughters receive 25% of the real estate properties.
The estate, consisting of bank accounts, was worth approximately $460,000.
Mr. Justice Smith awarded Philip Burnett 35% of the estate (not including the properties outside of the estate). He held that of the balance, Mr. and Mrs. Petrie are entitled to 40%, and each of the two daughters who settled is entitled to 12.5%. The shares of the daughters are subject to their settlement agreement with Mr. and Mrs. Petrie, and reflect the fact that they will receive an interest in the two properties.