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  • Codicils: The Hidden Risks

    Codicils: The Hidden Risks

    It’s not uncommon for a will-writer to want to make a modification to an outdated will that they’ve written years ago. Often times, will-writers only want to make small changes to their will – maybe changing a single sentence in the will or adding a beneficiary to the will. You can use a codicil, usually a small document, to make amendments to a will. The document specifies any changes to the original will that the will-writer would like to make. Codicils can be suitable for simple modifications, but you shouldn’t use them when the changes are complex. It’s important to consider the legal implications when drafting a codicil, especially when attempting to draft a codicil without professional guidance. In this article, we’ll go over some of the common problems that can arise from implementing codicils into your estate plan.

    Codicil Basics

    A codicil is a document that allows you to make minor changes or additions to an existing will without having to create an entirely new will. Essentially, it serves as an amendment to the original will. People usually implement codicils for updating specific provisions in their will. Common reasons people use a codicil to update their will include:

    If you find yourself implementing multiple codicils, it may be time to draft an entirely new will.
    • Updating names of beneficiaries who have changed their name.
    • Changing your executor.
    • If you acquire a new asset and wish to designate a beneficiary for it.

    However, it’s important to remember that while codicils provide flexibility, they have limitations. Though a codicil is straightforward, it’s not always the best option for modifying your existing will. If you need to make complex changes, we recommend drafting an entirely new will.

    Codicils Can Hinder Your Estate Planning Goals

    Drafting unclear testamentary documents can expose the estate to risk of litigation. If your executor can’t specifically determine your testamentary wishes, they might distribute your assets in a way you didn’t intend. Further, beneficiaries can dispute the will, which can lead to lengthy litigation. Having imprecise testamentary documents will ultimately cause stress for your loved ones and can delay their inheritance. Codicils, while useful, can pose significant risks if not properly implemented. Here are some risks to consider:

    Legal Disputes: Interested parties may dispute the codicil in court if you haven’t executed it correctly. This can lead to lengthy legal battles, causing emotional distress and financial burden for the beneficiaries.

    Inconsistencies with the Original Will: A poorly drafted codicil may contradict the original will in unintended ways, leading to confusion and potential disputes. You must ensure the codicil aligns with the intentions you outlined in the original will.

    Misinterpretation of Intentions: Without clear language, a codicil may be open to interpretation. This could result in the estate being distributed in a way that the testator did not intend.

    Invalid Codicils: For a codicil to be valid, it must meet certain legal requirements, such as being signed and witnessed. The courts may deem the codicil invalid if it doesn’t meet these requirements. This may mean the codicil is set aside, or beneficiaries must apply to the courts to have the codicil cured into a valid testamentary document.

    Implementing Multiple Codicils

    A very common mistake is the addition of multiple codicils to your will over time. This can lead to a confusing patchwork of amendments that may contradict each other or the original will. It can also make the will difficult to interpret, increasing the risk of legal disputes. Undertaking proper execution and witnessing of each codicil increases the chance of error with each addition. Drafting a new will often becomes more efficient when there are multiple changes. This allows for a comprehensive review of the estate plan and ensures that all provisions are consistent and up-to-date. Remember, clarity is key in estate planning to ensure your wishes are carried out as intended.

    Preventing Codicil Complications

    Preventing complications with codicils involves careful planning and execution. Will writers should consider the following when implementing codicils:

    Proper Execution: Ensure that the codicil is executed correctly in order for it to be a valid testamentary document. The will writer and two witnesses must sign a codicil, just like wills.

    Consistency with the Original Will: Review the original will and the codicil together to ensure they are consistent and there are no contradictions. If a change is significant or complex, it may be better to create a new will.

    Using Clear Language: Use clear and unambiguous language in the codicil to ensure your intentions are understood. Ambiguities can lead to disputes and legal challenges, so include as much detail as possible.

    Professional Advice: Estate planning professionals can provide guidance on whether a codicil is the best option and ensure it is implemented correctly.

    Regular Reviews: Regularly review your will and any codicils to ensure they continue to reflect your wishes. Life changes, such as marriage, divorce, or the birth of a child, may require updates to your estate plan.

    Reminders for Will Writers

    Codicils may be the right solution for making minor amendments to your will. They offer a way to adjust your estate plan without having to rewrite your entire will. However, as we’ve discussed, they come with their own set of risks, especially when not properly implemented or when used multiple times in your will. 

    The key takeaway is this: always seek professional help when making amendments to your estate plan. Estate planning professionals can provide valuable guidance on whether a codicil is the best option for your intended changes, or if a new will would be more appropriate. They can also ensure that any changes are implemented correctly, reducing the risk of disputes and litigation after your death.

    Remember, your estate plan is a living document that should evolve with your life and circumstances. Regular reviews and updates, done with professional assistance, can help ensure that your wishes are carried out as intended and that your loved ones are protected. Estate planning can be complex, but with careful consideration and the right advice, you can navigate it successfully.

    If you’re ready to make updates to your will, or begin your estate planning journey from scratch, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • 2024 Best of the City – Voting Now Open! We’ve been nominated!

    2024 Best of the City – Voting Now Open! We’ve been nominated!

    It’s that time of year! Victoria News’ has launched the 2024 Best of the City awards – where you’re able to vote on your favourite Greater Victoria businesses! Voting includes a wide variety of categories, including best attraction, best ice cream, best restaurant, and best law firm (and other categories too!). This is the 30th annual Best of the City Awards. As an added bonus, all valid entries (those who vote in at least 10 categories) are entered into a draw to win a $200 Local Business Gift Card pack!

    League and Williams is extremely proud to have won the best law firm in Victoria award six years in a row (since 2018) and we have no plans of ending the streak this year! Voting is easy and what better way to show the local businesses in Victoria that you love, how much you love and support them! To submit your vote for League and Williams, simply go to the contest page and find League and Williams Lawyers under the “Services” category and then under “Best Law Firm”. After verifying your email address, you will be able to submit your vote for at least 10 categories and as many other categories as you’d like.

    Importantly: voting ends on June 8th, 2024 at midnight.

    We greatly appreciate and thank you for your continued support! We pride ourselves on our team’s ability to deliver to our clients a high level of service. We encourage you to vote and to encourage your friends and family to do the same.

  • Deathbed Gifts in British Columbia

    Deathbed Gifts in British Columbia

    In estate law, gifts and the context under which they were given is one of the most common issue that families litigate over. There are many different types of gifts a testator can give, each with specific requirements to be legally valid. One of the biggest reasons family members raise claims is that they believe a gift was given under unfair or suspicious circumstances. Some claims assert that a transfer was never intended to be a gift at all. In this article, we’ll discuss the concept of Donatio mortis causa, or deathbed gifts. These are gifts given when the gift giver (donor) is contemplating death.

    Concerns Over Gifts Given Late in Life

    One of the easiest and most efficient ways of gifting assets from your estate is inter vivos gifting. This is giving gifts while you’re still alive instead of through your will. Inter vivos gifting has many benefits for will writers, including reducing probate fees and allowing them to watch their loved ones enjoy the gift. However, inter vivos gifts are often the subject of estate disputes. Sometimes, family members expect to inherit an asset, only to find that it has been gifted to someone else already. In these circumstances, the family member might raise a claim that the asset wasn’t intended to be a gift, and is held in a constructive trust. To avoid conflict, will writers should make their intentions clear in writing when making significant asset transfers. 

    Another concern which can give rise to litigation is uncertainty over the testamentary capacity of the donor. To make a valid gift, the donor must have capacity, and must not be under undue influence from other parties. Lack of capacity and undue influence can invalidate a gift, meaning the asset becomes part of the estate’s residue. Beneficiaries may be very concerned when their loved one gives away a large asset near the end of their life. However, deathbed gifting is valid in many circumstances, and there is extensive case law demonstrating valid deathbed gifting. 

    It is always best to plan gifts in advance and be clear about your intentions.

    Elements of a Valid Deathbed Gift

    Legally, a gift is a ‘voluntary and gratuitous transfer of property’ from which the donor of the gift draws no personal benefit. Beyond the basic legal criteria of a gift, a deathbed gift must: 

    1. Be made in contemplation of death;
    2. The gift is effectively delivered to the donee (receiver of the gift); and
    3. The gift is only complete upon the death of the donor.

    Let’s take a closer look at the requirements of a deathbed gift.

    1: Made in Contemplation of Death

    The gift must be motivated by the gift donor’s contemplation of their own death. This means that the donor was contemplating the prospect of their death while making the gift. The primary motivation of the donor to give the gift is the imminence of their death. However, this does not mean that the donor must expect or be certain of their imminent death.

    2: Effective Delivery of the Gift

    The gift must be effectively delivered to the donee. This could simply mean the donee takes the physical asset into their possession. When ownership has technical requirements, those must be satisfied before the donee is said to have received the gift. For example, if the gift is land, necessary documents for the transfer of that land must be completed and filed. 

    3: Completion Upon the Death of the Donor

    Any gift is only complete or “perfect” after specific criteria have been met to effect the transfer. An imperfect gift might be void or unenforceable by the donee until the conditions are met. In the case of a deathbed gift, the gift is not ‘perfected’ or complete until the death of the donor. 

    An Example From Case Law

    A commonly cited case in this area of law helps clarify what “contemplation of death” might entail. In Thompson v. Mechan (1958), the deceased was concerned about upcoming air travel. He gave Mechan the keys to his car and blank ownership documents before traveling. There was no incident with Thompson’s air travel, but he passed away from an unrelated medical condition just days after the flight. Mechan argued that the transfer of the car was a valid gift under donatio mortis causa, and the gift was complete upon Thompson’s death. 

    The court found that the gift was not a deathbed gift because it was not made in genuine contemplation of death. The court found the risks associated with air travel were no more than ordinary risks people face in everyday life. Further, even if the donor had reasonably contemplated death resulting from the air travel, the gift would not have been perfected upon his death because he died of unrelated causes. Ultimately, the court ordered Mechan to either return the car to the administrator of the Thompson estate, or pay her the value of the car.

    Reminders for Will Writers and Gift Givers

    While the law provides mechanisms to respect and enforce the wishes of testators, it is always best to make your intentions clear in writing when giving gifts. This simple act can help avoid costly and stressful estate litigation after your death, sparing your loved ones additional hardship during an already challenging time.

    Deathbed gifting and inter vivos gifting can occasionally cause controversy amongst beneficiaries, so it is best to avoid uncertainty by created a detailed estate plan and keeping it updated. If you’re ready to begin drafting your first estate plan or make changes to an existing one, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Curing an Invalid Will: Acceptable Evidence

    Curing an Invalid Will: Acceptable Evidence

    A will is invalid in BC if it isn’t compliant with the formal requirements of the Wills, Estates and Succession Act (WESA).  In British Columbia, courts have the power to “cure” an invalid will which still represents the intentions of a testator. But how do the courts discern the true intentions of a testator with an invalid will? In this article, we’ll go over the principles surrounding extrinsic evidence interested parties can submit to support the court in curing an invalid will.

    Requirements Under WESA

    Under WESA, for a will to be valid in BC it must satisfy three requirements: 

    1. The will must be in writing;
    2. The will must be signed at the end, and;
    3. The will must be properly witnessed.

    According to WESA, the will-writer must sign the end of the will while in the presence of two or more witnesses in order to create a valid will. Basically, you must have two people witness you sign the last page of your will. Importantly, witnesses can’t be beneficiaries of the will, or the spouse of the will-writer. Further, the will must be in writing. A video or voice recording is not a valid legal will under WESA.

    Curing Invalid Wills

    According to s. 58 of the Wills, Estates and Succession Act (WESA), the courts have the ability to make a curative provision to an invalid will. Essentially, this means that if a will does not satisfy the above requirements, the courts can “fix” the deficiencies of the will and validate it. If a judge is satisfied that the owner wrote the will and it truly represents the owner’s intentions at the time of their death, they can cure the invalid will.

    The court uses medical records as evidence to understand the mental state of the will writer when they prepared a testamentary document.

    Evidence Used by the Courts to Discern a Will Writer’s Intention

    In the case of Hadley Estate (Re), 2017 BCCA 31, the judge discussed the difficulty of discerning if a non-compliant document expresses the testamentary intentions of its writer. This is because, obviously, the person most able to express those intentions has already passed away. Invalid wills, drafted without a lawyer’s help, are more likely to be unclear in their use of legal language. Because of these challenges, interested parties are able to submit extrinsic evidence to aid the courts. Extrinsic evidence can be almost any material which relates to or demonstrates the will writer’s testamentary intentions.

    Examples of Evidence

    In curing a will, the court aims to ensure that, even though the document is invalid due to WESA non-compliance, it still expresses the fixed and final testamentary wishes of its writer. To demonstrate that the will should or should not be cured, evidence that could be submitted includes:

    • Personal Letters or Emails: These can provide insight into the will writer’s relationships and their intentions for their estate. For example, a family member receives a letter discussing the writer’s wishes for them to receive specific assets.
    • Audio or Video Recordings: Recordings where the will writer discusses their estate plans can be powerful evidence. However, the recency and context of the video recording will determine the value of this evidence.
    • Financial Documents: Bank statements or other financial documents can show patterns consistent with the will writer’s stated intentions. For example, regular payments to a charity that the will writer wished to leave a bequest to could confirm a clause making a large donation in an invalid will.
    • Witness Testimonies: People who were close to the will writer can testify about conversations they had regarding the will. A friend could testify about the testator’s relationship to their family members and any comments they might have made about their testamentary wishes.
    • Medical Records: These can help establish the will writer’s mental capacity at the time the will was made. This could include a doctor’s report stating that the will writer was of sound mind when discussing their estate plans.
    • Diaries or Journals: Personal writings can reveal the will writer’s thoughts and intentions about their estate. For instance, a journal entry where the will writer discusses their reasons for wanting to disinherit a particular family member.

    Examples of Evidence from Case Law

    An Unsigned Handwritten Note

    There are numerous examples in BC case law which demonstrate admissible extrinsic evidence to support the courts in curing a will. In the recent case of the Skopyk Estate (2017), a will writer told his family that his will from 1995 didn’t express his current wishes, and that he was working on a new one. He passed shortly after, but family found an unsigned handwritten document in his apartment after his death. Even though the document was unsigned, the court cured the document based on the following extrinsic evidence:

    • The document was placed somewhere it could be easily found after the death of the will writer;
    • The estate distribution set out in the document was rational based on it’s exclusion of a beneficiary of the 1995 will who had since died;
    • The document referenced the 1995 will, and even clarified a typo from that old will;
    • The deceased had told family numerous times that he was trying to update his 1995 will before passing; and
    • The distribution in the document matched the wishes he had communicated to his family while in the hospital before someone found the document.

    Based on the above evidence, the court found that the note was a deliberate expression of the deceased’s final wishes. The court ordered that the document was a valid alteration to the pre-existing 1995 will.

    A Document Labelled “Will” Stored With Valuables

    In Dickinson-Starkey Estate (Re) (2022), the deceased’s nephew sought legal assistance in locating his uncle’s valid will. There was no notice of will in force, and no document was found. He gained access to his uncle’s house using a neighbour’s spare key, and found a folder labelled “will” with the deceased’s name and address. The writer had stored the folder with items including antiques, family photos, expensive liquor, crystal and china. The document was lengthy and detailed, and clearly intended to serve as a will. However, the court couldn’t cure it under s. 58 based on the following discrepancies:

    • There were a number of handwritten notations and changes on the types document, indicating that it was still a work in progress;
    • The deceased did initial some pages, but there was no signature;
    • No one was given a copy or told specifically about a new will;
    • The deceased spoke frequently about his will, but had not taken any steps to finalise this new document, indicating it is not an expression of fixed and final intentions;
    • The deceased indicated he was still preparing his will in November 2017, and the document found in his home was dated July 2017;
    • There were clauses in the will which were inconsistent with one another.

    On the balance of probabilities, the court couldn’t determine that the deceased intended the document to express his fixed and final intentions. The deceased was likely still considering the contents of the document at the time of his death. Unfortunately, this meant that the estate had to be distributed according to the laws of intestacy, as the deceased had not written another will.

    Reminders for Will Writers

    Even though beneficiaries may have recourse if WESA finds your DIY will to be invalid, it’s always best to have a valid will in the first place. The process of applying to have a testamentary document cured under s. 58, gathering evidence and presenting it to the court can be time consuming and costly for loved ones. It is always best to seek legal advice when preparing your will, at least to ensure that it is valid under WESA and can be easily probated and executed after your death. If you have questions about the validity of your DIY will, or are ready to start your estate plan from scratch, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Probate: Getting a Grant of Probate for an Estate

    Probate: Getting a Grant of Probate for an Estate

    Understanding probate is important for will writers, estate executors and beneficiaries alike. It is a legal procedure that validates a will and authorizes the distribution of an estate under the supervision of the executor. This process ensures that the deceased’s assets are distributed correctly and legally to the beneficiaries. However, navigating estate administration can be complex and time-consuming, often leading to confusion and stress for loved ones during an already difficult time. Understanding probate is important because it can have an impact on the value of your estate, the responsibilities of your executor, and the time it takes to distribute assets to beneficiaries.

    What is Probate?

    Probate is a legal process that takes place after someone passes away. It’s like a green light that allows the executor to carry out the deceased’s wishes as stated in their will. During probate, the courts confirm that the will is valid and legally binding. The executor then has the authority to gather the deceased’s assets, pay any debts or taxes, and distribute the remaining assets to the beneficiaries. This is important because it helps prevent fraud and ensures that the deceased’s assets are distributed correctly. It’s a way to make sure that everything is done fairly and legally, and improve transparency. In British Columbia, probate is required when the deceased’s estate is valued over $25,000.

    Who is Involved in the Process?

    The probate process can involve several people. The most important is the executor, the person named in the will to administer the deceased’s estate. The executor must apply to the courts for a grant of probate. If there’s no will, or if the named executor is unable or unwilling to act, the court can appoint an administrator to perform these duties. Other parties involved may include creditors, who have claims against the estate, and legal professionals, who can provide guidance and assistance throughout the process.

    Probate Timeline for Estate Administrators

    The timeline for probate can vary greatly, typically ranging from a few months to over a year. In general, probate takes about six months. This timeline depends on several factors:

    • Complexity of the Estate: Larger estates with numerous assets and beneficiaries can take longer to process.
    • Existence of a Will: If the deceased left a valid will, the process is usually quicker.
    • Disputes: Any disputes or challenges to the will can significantly delay the process.
    • Debts and Taxes: The executor must settle all debts and taxes before distributing the estate, which can take time.
    • Court’s Schedule: The court’s workload and efficiency can impact the timeline.

    It’s important to note that while the probate process can be time-consuming, it’s a necessary step in ensuring the lawful and fair distribution of the deceased’s assets.

    Key Takeaways

    • Probate is necessary: It validates a will and authorizes the distribution of an estate.
    • Executor’s role is crucial: The executor administers the deceased’s estate, including settling debts and distributing assets.
    • Timeframe can vary: The probate process can take from a few months to over a year.
    • Disputes can delay the process: Any challenges to the will can significantly extend the probate timeline.

    If you have concerns about the grant of probate of an estate you’re administering or have an interest in, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • What is a Testamentary Contract?

    What is a Testamentary Contract?

    A testamentary contract allows a will writer to leave their estate to another person in exchange for something. Usually, this comes in the form of services, like end of life care for the will writer. A testamentary contract is a binding contract. A will writer will not be able to change the beneficiary of the assets after agreeing to the contract. Testamentary contracts can often give rise to estate litigation, for a number of reasons. In this article, we’ll cover the basics of testamentary contracts and problems that can arise from them in your estate plan.

    Basics of the Testamentary Contract

    When a will writer enters into a testamentary contract, they are agreeing to give their estate, or a specific asset to a specific person. If they later change their will to deprive this person of the assets promised in the testamentary contract, the beneficiary can sue for breach of contract. If they are successful in proving the existence and breach of a testamentary contract, either before or after the death of the testator, the Courts can enforce the contract by varying the will.

    Common Problems

    It is not uncommon for testamentary contracts to take the form of a verbal agreement. The most common problem litigants face in enforcing a testamentary contract is proving the existence of the contract to the Courts. This exact problem came before the B.C Supreme Court in the 2022 case of Angelis v. Siermy. 

    Without a clear record of a testamentary contract, it is up to the claimant to prove beyond a reasonable doubt that there was an agreement.

    In this case, a woman with no children left the majority of her high-value estate to one of her nieces in a 2002 estate plan. Years later in 2011, the aunt changed her will to give most of her estate to a different one of her nieces. The first niece, the claimant, alleged she had an oral testamentary contract with her aunt. In the alleged agreement, the aunt promised the majority of her estate to this niece in exchange for several years of unpaid end of life care. She claimed that the execution of the 2011 will breached this agreement. 

    Somewhat unusual in estate litigation, the will writing aunt was still alive when her niece brought this claim. The aunt denied the niece’s claim that they had a testamentary contract or even a verbal agreement, though neither parties had witnesses to support their claims. The claimant provided the Court with letters allegedly written by her aunt which explained her reasons for executing her 2002 will. The aunt denied writing these letters and, ultimately, the Court found that the claimant had forged two of the letters she submitted as evidence. The Court stated there wasn’t sufficient evidence that a testamentary contract ever existed between the two parties, and the claim was dismissed. 

    Key Takeaways

    Testamentary contracts are not uncommon in estate planning, as will writers promise loved ones certain assets in exchange for end of life care or other services such as home maintenance. However, people entering into these agreements should clearly document that there is an exchange of estate assets for services or other consideration. It is also advisable to ensure that other parties are aware of the will writer’s intention to exchange specific assets for services from a beneficiary. Having a record of the agreement which can be supported by witness testimony will ensure that the Courts can enforce a testamentary contract, even after the death of the will writer. 

    If you have questions about giving estate assets to a beneficiary in exchange for services, or if you are concerned that your testamentary contract won’t be honoured by a will writer, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com. 

  • Inheriting a Mortgaged Property in British Columbia

    Inheriting a Mortgaged Property in British Columbia

    Inheriting a property can be a bittersweet experience, filled with emotions and legal complexities. One such complexity arises when the inherited property has an active mortgage. This situation can lead to a host of questions: What are your responsibilities as an heir? What kind of liability do you face? What are your options moving forward? In this article, we’ll provide a clear understanding of what it means to inherit a mortgaged property in British Columbia.

    Inheritance and Estate Debt

    It is increasingly common for testators to die with some form of personal debt, no matter the total value of their estate. One of the most common types of debt is mortgage debt on a family home or investment property. When a person dies with debt, their estate must pay back their creditors before beneficiaries can receive their inheritance. For more on inheritance and estate debt, see our recent article here.

    Mortgages are a type of debt called secured debt. This means that the loan is tied to an asset the borrowed money was used to purchase. In the case of a mortgage, the creditor is the lending bank. They retain the right to seize the asset to recoup unpaid debt owed by the estate. 

    Some lenders offer a grace period to beneficiaries of mortgaged property. However, heirs should act quickly to manage their new asset.

    Rights and Responsibilities of the Beneficiary

    In British Columbia, the beneficiary who inherits a mortgaged property assumes responsibility for maintaining payments to the mortgage lender. They must handle other ownership costs such as property taxes and Strata fees. This applies even if the heir is ultimately going to sell the property. They may have to rearrange the details of the mortgage with the lending bank, but this may only happen when the mortgage is up for renewal. The lending bank will only exercise their rights to seize the asset tied to the secured debt if payments are not made. 

    Importantly, the executor of the estate must maintain payments on the property from the estate until the transfer of the property to its beneficiary.

    First Steps for Beneficiaries of a Mortgaged Property

    Inheriting a house with a mortgage can be a complex and challenging situation. Depending on the circumstances, there are different options and consequences to consider.  The first thing to do is to contact the mortgage lender as soon as possible and inform them of the death of the previous owner. They may have a grace period for mortgage payments in these circumstances, but they will need to verify your identity and ownership of the property.

    Next, beneficiaries must decide what to do with the property. Some options include:

    • Paying off the mortgage balance with other cash and assets from the estate. This may be possible if you have enough funds or if the estate has other valuable properties or investments which you are entitled to.
    • Taking out a new mortgage in your name. This may be an option if you want to keep living in the property or rent it out, but you will need to qualify for a new loan based on your income and credit history.. You may also need to pay fees and charges for setting up a new mortgage.
    • Selling the property and using the proceeds to pay off the mortgage. This may be an option if you want to cash out quickly or if you don’t want to deal with maintaining or managing the property. However, you will need to factor in selling costs, taxes, and potential capital gains or losses when calculating your net profit.

    Seeking Advice for Beneficiaries of Mortgaged Properties

    Inheriting a house with a mortgage can have significant financial implications and responsibilities for yourself and your family. It is important to understand your rights and obligations as an heir, as well as the potential risks and benefits of each option. You should consult a professional estate planner or financial advisor before making any decisions. They can help you assess your situation, explore your options, and advise you on the best course of action for your goals and needs.

    If you’re passing down a mortgaged property through your estate or expect to inherit a mortgaged property, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Estate Litigation- Who Pays the Legal Costs?

    Estate Litigation- Who Pays the Legal Costs?

    Estate litigation can be a complex and expensive process. Understanding the legal costs involved is crucial for both executors and beneficiaries facing litigation or those considering raising a claim. In this article, we’ll take a look at how B.C. Courts usually determine who is responsible for legal fees.

    What are Litigation Costs in Estate Disputes?

    When a Court assigns ‘costs’ to one party, they are ordering them to pay for the other party’s legal expenses. These can represent the expenses of legal advice and representation and court fees related to the case. Ordering costs provides compensation for the winning party for the time spent on the issue, encourages settlement and can discourage frivolous lawsuits.

    There are two types of litigation costs which a Court can assign in British Columbia. The first is known as ‘part and party costs’. These are calculated based on a set of rules set out by the B.C. Supreme Court. These rules consider the complexity and social importance of the case, and the amount of time spent in trial. These fees place the winning party in the financial position they would have been in if they hadn’t had to litigate.

    Litigants must be aware that fees can add up quickly during lengthy court battles.

    Another type of litigation costs the Court can award are called ‘special costs’. These are only awarded in unusual circumstances. Special costs are aimed at compensating a winning party where the other party has behaved inappropriately. For example, if the losing party engaged in fraud or harassment in the course of their litigation. These fees are usually above and beyond the actual legal fees incurred by the winning party. Litigants can apply to the Court to be awarded special costs if they feel the other party has behaved truly reprehensibly.

    The Courts’ Approach

    Generally, in all types of litigation, the Court will assign the costs of legal fees for both parties to the “losing party”. In some instances, there is no definite winner or loser of a case, but blame for the issue is apportioned between the parties. Above all, the rule for assigning costs is that they are “in the cause” of the litigation. This means that the party who ’caused’ the legal fees, whether by bringing a frivolous lawsuit or by their actions which gave rise to the litigation will be responsible.

    I’ve Been Awarded Litigation Costs- When do I Receive Funds?

    Given that litigation expenses are usually assigned to the losing party, expenses are assessed at the end of a case. If a case goes to trial, a Judge will usually make an order for costs in their final decision. If a case has reached a settlement before trial, a settlement agreement will usually provide details on how and when litigation expenses will be assessed. Once you have received an order, you can arrange to speak with the registrar. The timeline for receiving payment for legal expenses varies from case to case.

    If you have questions or concerns about a potential estate litigation case, contact an experienced estate lawyer today.

  • Can Estranged Children Contest A Will?

    Can Estranged Children Contest A Will?

    In the 2010 case of LeVierge v. Whieldon, the BC Supreme Court examined the rights of a parent to exclude estranged children from their will under the Wills, Estates, and Succession Act (WESA). In this article, we’ll summarize the rights of estranged children to contest a parent’s will in British Columbia.

    Facts of the Case

    In British Columbia, Courts can intervene and vary a will which disinherits a child or spouse for unjust reasons.

    The plaintiff, LeVierge, was one of Edith Whieldon (the deceased)’s three children. Edith passed away unexpectedly and at the time of her death had an estate valued at approximately $1.2 million. In her will, Edith left the residue of her estate to her two sons, and excluded her daughter from receiving any inheritance. LeVierge said she had been estranged from Edith for two years before her death, and that alone was the reason for her exclusion from the estate and that she contested the will on the grounds that she had a moral claim to an inheritance from her mother’s estate.

    In considering the claim, the Court considered whether the reasons for LeVierge’s exclusion were ‘valid and rational’ to allow disinheritance under WESA.

    Evidence Considered

    When a WESA claim is made, the court will consider the broad context of the family’s relationships. In this case, the court considered oral evidence from the plaintiff and her siblings about the her relationship with Edith. Interestingly, part of the evidence considered by the court was the decedent’s diary. Edith’s diary provided specific insight into the breakdown of the mother-daughter relationship. 

    In B.C, the Courts can change a will after the death of its writer if the terms are unfair.

    As a result of the diary evidence, the Court found that LeVierge was not a credible witness. LeVierge claimed she had been estranged from her mother for two years leading up to her death. However, the diary demonstrated that the estrangement had begun 10 years prior. The diary supported the estate’s position that there was a high conflict mother-daughter relationship. The diary suggested that the plaintiff denied Edith visitation with her grandchildren and didn’t keep in contact with her. As a result the court dismissed the plaintiff’s arguments for a moral claim to inheritance. 

    Further, evidence showed LeVierge had previously received a gift of $160,000 from her father. She used it for a deposit on a new home. The the mortgage payments were paid by her father, and LeVierge lived there with her children at little cost. As a result of this gift, at the time the plaintiff’s father passed, the plaintiff’s siblings were unable to benefit from his estate.

    The Court’s Decision

    After considering evidence from the claimant, her siblings and the diary of her mother, the judge found that there were many reasons for the claimant’s exclusion from the will, and that the exclusion was reasonable and was not just the result of the estrangement from Edith in the two year’s before her death. A critical part of the reason the court found the plaintiff’s exclusion to be reasonable and just was because the plaintiff’s father had contributed a large sum of his estate to the purchase of a new home. As a result, the plaintiff’s siblings received no benefit from their father’s estate upon his death.

    This case demonstrates the complex evidence that a Court will consider when a claim to vary an estate is made. It also demonstrates that estate disputes can be high-conflict, and complex in nature and that an estate variation claim that is litigated can take years to resolve. A disputed estate delays estate administration with the distribution of inheritance delayed until the dispute is resolved. Will writers should always carefully plan their estate to minimize risk of estate litigation after their death. One of the best ways to avoid estate litigation is to speak openly with the beneficiaries and family to ensure there are no surprises upon death and that the reasons for the decisions made are well known. 

    Don’t know where to start with your estate plan? Contact an experienced estate lawyer today. We’ll create a unique plan suited to you and your family’s circumstances. Alternatively, feel you’ve been unfairly treated in an estate? Contact an experienced estate dispute lawyer today

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Incorporating Your Small Business In British Columbia

    Incorporating Your Small Business In British Columbia

    Incorporating your small business in British Columbia can provide numerous benefits, including limited liability protection, tax benefits, access to government grants, enhanced credibility, and flexibility in ownership and management structure. In this article, we will discuss the advantages of incorporating your small business in British Columbia and explain the process of incorporation.

    Advantages to Incorporating Your Business

    Limited Liability Protection

    One of the most significant benefits of incorporating your small business in British Columbia is limited liability protection. This means that the shareholders’ personal assets are protected from the company’s debts and liabilities. In other words, if your business is sued or goes bankrupt, your personal assets such as your home or car will not be at risk.

    Tax Benefits

    Incorporating your small business in British Columbia can also provide tax benefits. Corporations can more easily deduct expenses such as salaries, bonuses, and benefits for employees. This can help reduce the overall tax burden on your business.

    Incorporating your business may require additional responsibility for reports on income and expenditures.

    Access to Government Grants

    Incorporating your small business in British Columbia can also provide access to government grants. The government offers various grants and funding programs to help small businesses grow and succeed. These grants can help cover expenses such as research and development, marketing, and hiring new employees.

    Enhanced Credibility

    Incorporating your small business in British Columbia can also enhance your credibility. A corporation is a separate legal entity from its shareholders. This means that incorporating your business can give it a more professional image and make it easier to attract investors and customers.

    Flexibility in Ownership and Management Structure

    Incorporating your small business in British Columbia can also provide flexibility in ownership and management structure. For example, corporations can issue different classes of shares with different voting rights. This can help you raise capital while retaining control over the company.

    Continuity Planning for Your Business and Family

    Drafting articles of association and incorporating your business can help provide a clear structure and plan when it is time to pass the torch in the family company. Ownership of the business and its assets can pass seamlessly when you decide the time is right, or upon your death. In this way, incorporating your business can simplify your estate planning if you wish to pass the business on to future generations. For more on how companies and company shares are passed down in estate law, read our article here.

    Incorporation Process in British Columbia

    The process of incorporating a small business in British Columbia is relatively straightforward. First, you need to choose a name for your corporation that is not already taken. You will then need to file articles of incorporation with the British Columbia Corporate Registry. The articles of incorporation should include information such as the name of the corporation, its purpose, the number of shares authorized, and the names of the company’s directors.

    Once you have filed the articles of incorporation, you will need to obtain a business number from the Canada Revenue Agency (CRA). You will also need to register for any necessary provincial or municipal taxes.

    Next Steps

    The process of incorporation is relatively straightforward but requires careful consideration and planning. If you are interested in incorporating your small business in British Columbia or have any questions about the process, contact an experienced corporate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com