The Blog

It is common for testators to make gifts to their “children”, “descendants” or “issue”, such as a “gift of the residue of my estate to my issue per stirpes.” Because biological lineage is, it would seem, the criterion for entitlement to such gifts, beneficiaries under a will can try to increase their share of the gift by proving that other beneficiaries, such as their siblings, are in fact not biologically related to the testator and are thus not properly members of the class of beneficiaries.

Emotion is a powerful driver of lawsuits. Estate litigation is especially prone to devolve into a forum for family infighting, with devastating consequences. In Holowaychuk v Lopushinsky, 2016 ABCA 102, the Alberta Court of Appeal upheld an important decision regarding costs in such emotion-driven cases, allowing full indemnity costs against the unsuccessful litigant.