In BC, courts can rule a will unfair and vary it if it doesn’t make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. This ensures that individuals can’t disinherit spouses and children without sufficient cause. But what about stepchildren? According to theWills, Estates and Succession Act (WESA), a child is a natural birth child or a legally adopted child. WESA does not consider a stepchild as a child unless the stepparent legally adopts them.
Stepchildren can’t vary a stepparent’s will under WESA. However, there are ways that stepchildren can challenge a will. These scenarios can arise if:
Spouses create a mutual will to grant the surviving spouse the majority or entirety of their estate. After both spouses pass away, the estate divides among their beneficiaries based on the will’s terms. When stepchildren are part of the equation (from past or future relationships after a spouse’s passing), creating a mutual will becomes crucial. The primary purpose is to provide for a spouse while ensuring fair distribution of the estate to their own children in the future. If one of the spouses in a mutual will agreement passes away, the surviving spouse can’t alter the will. This prevents stepchildren from being unfairly disinherited if their birthparent dies before their step-parent.
An Example From Case Law
Unfairly disinherited stepchildren cannot directly file a wills variation claim against their stepparent’s will.
A case in White Rock, BC, Wright Estate (Re) 2012, highlights the ability of the courts to give stepchildren the proper inheritance when there is a promise broken under a mutual will. A married couple, both of whom had children from a past marriage, wrote a mutual will together. Neither of them chose to adopt the other’s children. The husband, who was significantly wealthier than his wife, specified that he would provide for his wife for the entirety of her life, give a small portion of the estate to her children, and give the remainder of his estate to his own children. The intention being that his children would be receiving a large majority of his estate.
When the husband passed away, his spouse changed the will, electing to give the estate to her children, and nothing to her stepchildren. This directly contradicted the mutual will that they agreed to while he was alive. The stepchildren sued her for the promise broken under their mutual will. At the end of the summary trial, the judge ruled that this was a broken promise, and the challenge was successful. The children were entitled to the share of the estate that their father had intended.
Reminders for Will Writers
This case makes it clear that stepchildren can successfully challenge a will in BC in some circumstances. When a stepchild’s biological parent creates a mutual will, their parent’s requests and intentions will be respected. If you are a stepchild and you believe a promise was broken under a mutual will, contact an experienced estate lawyer today.
Beneficiaries, spouses and children have the right to receive a copy of a testator’s will, regardless of the executor’s opinion. When executors refuse to provide a copy of the will, beneficiaries can issue a subpoena. According to part 25 of the Supreme Court Civil Rules,
“A person may apply for a subpoena to be issued to require a person to deliver to the registry one or more of a testamentary document, an authorization to obtain estate information, an authorization to obtain resealing information, an estate grant, a foreign grant, a resealed foreign grant and a certified or notarial copy of such a document.”
To use a subpoena to request a copy of a document, you must have a valid reason.
The Subpoena Process
To clearly illustrate the process, let’s look at an example. A woman, Ann, is one of the beneficiaries of a will. Todd is the executor. Todd is in possession of the testator’s final will.
a) Failure to Deliver a Copy of the Will
A subpoena gives the executor a deadline of 14 days to provide a copy of the will to the courts.
Ann needs a copy of the will to see how her inheritance will impact a certain tax benefit. Since she is a beneficiary of the will, she requests that Todd provide her with a copy. After multiple direct requests to Todd for a copy of the will, he fails to deliver one to her. There could be many reasons that Todd is choosing to do this. However, these reasons don’t legally justify his refusal to provide a copy of the will. Ann decides to issue a subpoena to the courts to enforce Todd to act on his responsibility as the executor.
b) Issuing a Subpoena
The person who requests access to the document needs a valid reason, and the person who receives the subpoena must have previously refused to provide that document. Applying this to the example above, once the courts issue Ann’s subpoena, she serves Todd with the documents directly and in-person.
Todd has three options after receiving the subpoena:
Comply with Ann’s request by giving the courts a copy of the will;
Explain in front of the courts how he is not in possession of the will anymore; or,
Challenge the subpoena claiming that it’s unnecessary to comply with it.
c) Enforcing the Subpoena
If Todd has not done anything after 14 days, Ann can involve the police to enforce the subpoena. Ann must provide proof that the subpoena was served, proof that she requires a copy of the will, and a copy of the court’s subpoena issuance. Now, Todd can be apprehended and brought before the courts where he could be detained in custody. Todd can also be ordered to pay any costs that arose to Ann because she was not given a copy of the will upon her valid request.
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.
For beneficiaries, it can be frustrating to wait for the executor to apply for a grant of probate. Unfortunately, some executors deliberately delay the administration process or completely fail to take action. Regardless of how slow the executor is, beneficiaries can feel helpless in their ability to speed up the process. Family politics, legitimate delays, or suspicious and fraudulent behaviour can delay administration. Beneficiaries suffer because of executors who act slowly. Assets can change in value over time and the cost of maintenance on those assets can accumulate.
When executors completely fail to apply for probate, beneficiaries can take legal action to advance the estate administration. Beneficiaries and interested parties can file a citation, compelling the executor to act.
Filing a Citation
Beneficiaries are not the only people who can file a citation, any interested party can.
A citation forces an executor to either act, or risk facing removal as the executor of the will. The courts will appoint a new executor if they remove the current executor. The new executor can then apply for a grant of probate themselves.
To issue a citation in relation to the probate of a testamentary document, the citor must have an interest in the estate, and knowledge or belief that a testamentary document exists and is in the possession of the executor. Citations must be directly served to the executor in-person. Once served, the executor has 14 days to take action. A person who receives a citation to apply for probate can:
Apply for a grant of probate,
Provide a valid explanation of why they haven’t filed yet, or
Renounce their executorship.
After Receiving the Citation
After receiving a citation, an executor will have 14 days to take action. This does not mean that they must immediately apply for a grant of probate upon receiving a citation. However, they must take action in some way to progress the administration of the estate. If the citation compels the executor to provide a copy of the testamentary documents, they must comply within 14 days. When the citation concerns the status of probate, the executor must take action of some form within 14 days. However, the time restriction is 6 months after the day of the citation being served.
If probate has already been applied for but has not been granted by the courts yet, the executor is simply required to provide documentation to the citor, demonstrating that probate has been applied for and they can take no further action until it is granted. This is an action that the executor would have to perform within 14 days of being cited. However, if they have not applied for probate, they must do so in a timely manner so that it will be granted within 6 months from the date of receiving the citation.
If after 6 months no probate has been granted, the executor can be removed. The time frame of 6 months can seem like a long time, however, probate can be a lengthy process. If there are any applications to challenge the will during this process, the length of time given to the executor is likely to be extended.
Failure to Answer the Citation
If the executor does not answer the citation, either refusing to issue a grant of probate or not providing explanation as to why probate has not been granted, they can be removed as executor. Once the executor is removed, the person issuing the citation has options available to proceed with the estate administration process.
An order that the testamentary document is a will proved in solemn form; or,
If the testamentary document is in the possession of a cited person, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document.
Reminders for Beneficiaries
Since executor removal directly conflicts the will-writer’s wishes, it can be a difficult process to find a replacement to take over executorship of the estate. It’s not as simple as appointing the person who filed the citation the executor. The will may need to be cured and modified to enact a new executor or the will may need to be proven in solemn form. The will is required for probate to be granted, so, in some cases it may be necessary to subpoena the original executor to provide estate administrators with the will.
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.
Wills in BC can be ruled invalid if a claimant can prove the testator was under undue influence. Undue influence is an influence causing the execution of a will which pretends to express the will-maker’s mind, but in reality, does not, and expresses something else which he or she did not really mean.
What is Considered Undue Influence?
It’s difficult to prove undue influence in BC. To satisfy the criteria of undue influence, the influence must be so significant that the testator’s wishes were completely overpowered. Suggestions, persuasion and advice are all allowed in BC and are not considered forms of undue influence. A successful claim needs to have proven coercion that prevented the will-writer from exercising their free will. This can be in the form of psychological, financial and physical pressure – it is not limited to threats or terrorization. Even when undue influence has occurred, it can be difficult to establish to the degree required by the courts. It can be difficult for the courts to distinguish between undue influence or simple persuasion, which is allowed in BC.
The Burden of Proof
The presumption of undue influence is not a provision in all of Canada. In Ontario for example, they do not have a doctrine similar to this.
The burden of proof is on the claimant (the person challenging the will) to demonstrate the will-maker was unduly influenced. However, the burden of proof can shift to the defendant in certain instances. If the claimant can show that there was a special relationship established between the will-maker and the person whom the will-maker was dependent on, there is a presumption of undue influence. This means that the defendant now has the onus of proving that there was no undue influence. In order to establish this presumption under the structured approach applied by BC courts, the evidence provided must show that there existed a relationship of influence at the time of will-writing, and that some of the disposition outlined in the will requires explanation or does not seem characteristic of the will-writer’s wishes.
For example, when the will-maker is a parent who is dependent on one of their children for their day-to-day care. The parent might choose to give a disproportionately large share of the estate to their care-taking child. Due to their relationship, the child must prove the gift wasn’t made under undue influence if a claim is raised. If they can’t do this, the court can cancel or reduce the gift, or even rule the will invalid.
Examples of Undue Influence Claims in BC
Some of the most common undue influence claims involve people who have entered an elderly person’s life very recently and been given a large portion of the estate. This can be suspicious, as people tend to give their estate to family longtime friends. Another frequent case is children who are relentless in having a parent give them a larger portion of the estate than their siblings. Parents are put in a position where they see no option other than to honour this child’s request, out of fear of ruining their relationship. This is recognized as a form of undue influence.
The case of Tribe v Farrell (2003) demonstrates how undue influence can be proven solely through fear and psychological factors. An elderly man he feared his caregiver would leave him if he didn’t give her his house. In the end, he left more of the estate to the caregiver than his own son. Due to this special relationship, the caregiver had to prove she did not unduly influence him. Ultimately, she failed to illustrate to the court that she did not unduly influence the will-writer. It was held that the second draft of his will which listed her as a beneficiary was invalid.
A Recent Example
Undue influence can be exerted both physically and psychologically.
In a recent BC Supreme Court case a woman wrote a new will while terminally ill in the hospital. The new will gave more of the estate to her common-law spouse and his grandchildren, reducing her godchildren’s share of the estate. The godchildren elected to file an undue influence claim.
The lawyer who helped prepare the new will described her as being very confused about why the lawyer was visiting and what they were doing on the day the will was drafted. The lawyer explained that the woman could engage in conversation, had a clear memory of some things, but had trouble recalling the date and where she was. The woman also could not give the exact names of her godchildren. It was clear that the woman was not legally capable of creating a will at the time.
The Opinion of the Court
On the facts, it seemed that the woman was persuaded by her spouse to make these changes to her will. The godchildren couldn’t prove undue influence as there wasn’t evidence to indicating that the will didn’t express her wishes. There was no special relationship in this case, as the woman was not dependent on her spouse or his grandchildren. The circumstances did not adequately satisfy the criteria to establish a presumption of undue influence against her spouse or his grandchildren.
The judge had to determine to what extent the woman’s mental state impacted her ability to write a valid will, and if she was unduly influenced by her spouse due to her mental incapacity. Even though the woman did not demonstrate mental clarity at the time the new will was written, the court held that, on the balance of probabilities, she truly intended to make these changes to her will. The case was dismissed as there was no direct evidence of undue influence.
In only the most extreme and conclusive cases will a court revise- or vary– a person’s will. The process by which this type of claim is investigated and decided by the courts is designed to ensure that will-maker’s true intentions are respected after their death. If you think that someone you loved was under undue influence during their will making, 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.
In BC, interested parties can challenge a will if they believe it is invalid due to suspicious circumstances like undue influence or lack of capacity. The courts presume a will is valid if it meets the following requirements:
The will must be in writing;
The will must be signed at the end by the will-maker, and;
There must be two witnesses to the signing.
The will-writer must have been aware and in approval of the will’s contents, and have had the testamentary capacity to create the will at the time of it’s writing. Testamentary capacity is a person’s legal and cognitive ability to write a valid will. The testator must understand the purpose of a will, decide how to distribute their assets, and be mentally capable of making free decisions. Sometimes, we may be uncertain if the will-writer had the mental capacity to create a will when they wrote it, especially if they were in a state of terminal illness.
What are Suspicious Circumstances?
Suspicious circumstances are important because they threaten the presumption the will is valid. The courts consider suspicious circumstances as situations that raise doubts about the will-writer’s mental capacity, approval of the will’s contents, and their freedom to sign the will without undue influence. Claimants can dispute the validity of a will due to suspicious circumstances, and the courts may invalidate that will. The fact that there were suspicious circumstances during the will-writing process is not enough to successfully challenge a will – the circumstance in question has to have impacted the will-writing process enough to establish that the will does not accurately express the wishes of the will-maker.
The doctrine of suspicious circumstances in BC is meant to ensure that will-makers have acted freely and voluntarily in their will-making process, and to prevent the enforcement of legally invalid wills. When writing a will, the will-maker’s lawyer is responsible for determining whether the will-maker had the mental capacity to distribute their estate in their will. Because of this, in court, there is a presumption of testamentary capacity unless there is evidence to suggest otherwise.
Why Suspicious Circumstances are Important
Suspicious circumstances can pass the burden of proof to the defendant.
The presumption a will is valid can be rebutted by the existence of suspicious circumstances. The burden is initially on the person raising the suspicious circumstances, however, if the challenger can establish that suspicious circumstances interfered with the making of the will on a balance of probabilities – a likelihood greater than 50% – the burden will shift to the person propounding the will (the person asserting it is valid) to prove that the suspicious circumstance do not invalidate the will. This can include proving the will-writer had testamentary capacity, the will-writer knew of and approved of the contents of the will, or that there was no interference through fraud or undue influence during the will-writing process.
In short, the existing presumption of validity is rebutted when suspicious circumstances arise. The defendant, usually the executor of the will, rebuts the suspicious circumstances claim by proving the will’s validity. In some situations, this could mean the executor must prove the will in solemn form, which is a conclusive process in front of the courts which determines if the will is valid or not.
When Circumstances are Ruled Suspicious
As described in the Supreme Court of Canada’s judgment in Vout v. Hay (1995), suspicious circumstances can be raised by:
Circumstances surrounding the preparation of the will,
Circumstances tending to call into question the capacity of the testator, or
Circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.
Some scenarios which can provide evidence of suspicious circumstances during the creation of a will include:
Mental or physical deterioration of the will-writer,
Sudden changes to a will near the end of the will-writer’s life,
Sudden changes to a will which appear inconsistent with how the will-writer used to behave,
Significant involvement from beneficiaries during the will-writing process,
Gifts given to people who may have influenced the will-writer or to people which do not have a long-standing close relationship with the will-writer,
Recent husband or wife inheriting a majority of the estate,
Episodes of depression, anxiety, or drug abuse, and/or;
Significant dependency on a person who becomes a beneficiary;
Serious illnesses at the time of the will-writing.
This is a non-exhaustive list of suspicious circumstances that can arise during will-writing. Depending on the situation and the person, circumstances can seem suspicious nearly anywhere. It’s up to the appellant to show that a suspicious circumstance interfered with the will-writing process – making the will invalid. From there, the defendant must prove the validity of the will.
If you were victim to unfair estate distribution and you think suspicious circumstances lead to the creation of an invalid will – contact an experienced estate lawyer today to ensure you receive the estate that you’re entitled to.
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.
When someone believes a will is invalid due to suspicious circumstances, they can challenge the will. The person challenging the will has the burden of proof- they must demonstrate that the will is invalid. If they can demonstrate that the circumstances interfered with the testator’s ability to understand and approve of their will, or their freedom to sign it, the courts can rule the will invalid. We refer to this as the doctrine of suspicious circumstances.
The doctrine of suspicious circumstances ensures that testators have acted freely and voluntarily in their will-making process, and prevents the enforcement of invalid wills. If a will writer didn’t understand, approve of or freely choose to execute their will, it may not reflect their true testamentary wishes.
Be signed at the end in the presence of two or more witnesses, and;
Be signed by two or more witnesses.
Because the courts presume that a duly executed will is valid, the person challenging the will has the burden of proof to rebut the presumption. To challenge a will under the doctrine, an interested party must demonstrate on a balance of probabilities that the will is invalid. In practice, this means that they must provide evidence demonstrating at least a 51% likelihood that the will is invalid due to the circumstances. This could mean that they show the will in question wasn’t the final will of the deceased, provide evidence that the will writer didn’t have testamentary capacity when writing the will, or that they weren’t aware of the will’s contents.
Reversing the Burden of Proof
When a claimant establishes suspicious circumstances, the burden of proof shifts to the defendant.
If the claimant is able to prove that suspicious circumstances impacted the validity of the will, they rebut the presumption. This means that the defendant will have to demonstrate the will is still valid despite the suspicious circumstances. They will have to show the court that the circumstances didn’t interfere with the will writer’s testamentary intentions. The defendant is usually the executor, who seeks to show that the will is valid in order to continue the administration process.
In some situations, this could mean the executor must prove the will in solemn form, which is a conclusive process in front of the courts which determines if the will is valid or not.
Proof in Solemn Form
To provide a proof in solemn form, the court considers evidence concerning the circumstances of the will’s drafting and execution. During this process, the executor must prove that:
The will was duly executed;
The testator had testamentary capacity when they wrote the will;
The testator was knowledgable of the will’s contents; and
The testator approved of the will, not being under undue influence.
Key Takeaways
Ultimately, it is up to the claimant to demonstrate that suspicious circumstances interfered with the will writing process, invalidating the will. When a claimant successfully establishes suspicious circumstances, the defendant then has to show the will is still valid. If the courts determine that the suspicious circumstances lack significance or relevance, the claimant must present additional evidence. Otherwise, the courts will dismiss their claim.
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.
A will must have knowledge and approval of the terms of their will in order for it to be valid. They must also have had testamentary capacity when drafting it. In BC, lack of knowledge or approval of a will is grounds for ruling the will invalid. The courts presume that a duly executed will is valid. When disagreements arise, people may wonder what knowledge and approval of a will really means.
Essentially, the will-writer must understand the terms of the will, and they must know what they are signing. The will-writer must understand the general nature of what they are giving away. These are mandatory requirements for a valid will in BC. Some circumstances that may indicate the will-writer did not have the proper knowledge and approval of their will include:
Physical or mental handicaps restricting the ability to see or hear,
Language barriers,
Significant changes from previous wills in the final moments of the will-writer’s life,
Beneficiaries being heavily involved in writing the will,
Dependency on a beneficiary, physically and/or emotionally,
Isolation from close friends and family, or;
The will-writer not having read the will.
Challenging a Will for Lack of Knowledge and Approval
Knowledge and approval is only one requirement (of many) for a will to be valid.
In BC, there is a presumption of validity for will-writers. This means that people who challenge a will must rebut the presumption. However, the burden of proof can be passed on to the defendant if the will-writer was unduly influenced or not aware of the terms of the will. Further, if a claimant can demonstrate suspicious circumstances surrounding the drafting of the will, the burden shifts to the defendant. Suspicious circumstances are circumstances where it is questionable if the will accurately expresses the mind of the will-writer.
When suspicious circumstances arise, the defendant must prove that the will-writer understood and approved of their will. If the defendant can prove this, the court may rule the will valid, dismissing the challenge.
Lack of Knowledge and Approval Example
A common example of a client who may lack knowledge and approval of their will is an elderly, recent immigrant to Canada who is not fluent in English, or struggles with translation of legal language. A lawyer prepares their will, but they may not fully understand the will’s contents. Regardless, they proceed to sign the will when it has not been written exactly as they intended.
A family member later chooses to challenge this will, bringing up the possible impact of the language barrier on the will-writer’s understanding of the document. The burden of proof is then on the executor of the will, not the challenging party, to prove that the will-writer understood and approved of the document regardless of the language barrier. Another important examples arises where the will-writer does not understand the nature and extent of property they are giving away.
Reminders for Beneficiaries
While in some cases it’s clear whether or not the will-writer understood and approved of their will, that is not always the case. There is no clear-cut definition for knowledge and approval, and it can be up to the defendant to prove the validity of the will in cases of suspicious circumstance. The circumstances, the will-writer’s previous wills, and even their behaviour and medical history can play an important role in determining to what extent knowledge and approval can be established.
You can challenge a will if you believe you were wronged, especially due to a lack of knowledge and approval. Contact an experienced estate lawyer today to ensure you receive the estate that you’re entitled to.
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.
Unfortunately, people break their promises, sometimes with vast consequences suffered by one party. In estate related matters, people can make life-changing decisions based on promises made to them. When a promise is made, but the promisor’s will says otherwise, or they simply change their minds, those who are victim to the broken promise may have reasonable grounds to challenge the estate.
Elements of Proprietary Estoppel
In BC, the courts will look for three elements in determining whether proprietary estoppel is evident or not:
A promise is made,
That promise was reasonably relied on, and
Due to this reliance, the claimant suffered detriment when the promise was broken.
These elements can seem awfully vague; however, we’ll analyze two different cases in BC to help establish the extent to which these elements must be satisfied.
Will-Writer Said One Thing, the Will Says Another
A successful broken promise claim or proprietary estoppel case will demonstrate all three of the above elements.
The case of Sabey v. Rommel (2014) featured a farm employee, Sabey, who had a proprietary estoppel case when he was promised he would inherit the farm by the owner. In exchange, Sabey would be payed less for his work relative to the other employees on the farm. After the owner had passed away, her will specified that the farm was to be given to someone else. Sabey had a very close relationship with the farm owners as he lived on the farm, took horseback riding lessons on the farm and helped maintain the farm before the owners’ deaths. The court went through each of the three elements of proprietary estoppel in determining if the will should be modified to fix the broken promise.
When deciding whether a promise was made or not, the courts examine whether an assurance or representation was made by the owner that the claimant will have some right to the property. The promise can be made simply through words or conduct and does not need to have the elements of a valid contract. As evidence, Sabey had an invalid codicil left by the owner stating that Sabey was to inherit the farm. The codicil was invalid because it was not properly witnessed. The courts determined that it was clear a promise was made with an assurance that Sabey would inherit the farm.
Looking at the second element, the judge had to determine whether it was reasonable for Sabey to rely on this promise. Based on the invalid codicil evidence, it was clear that it was reasonable for someone in Sabey’s position to believe that they would inherit the farm. Further, the judge ruled that Sabey had in fact relied on this promise because it “altered his position or changed his course of conduct because of the assurance that he would inherit the farm.” Sabey had chosen not to pursue a professional dressage career path, got a job at a company near the farm and gave a significant amount of time and labour to maintain the farm because of this promise. This made it clear to the courts that Sabey had relied on this promise.
The final element, detriment, was satisfied because through Sabey’s reliance on the promise and significant pay reductions, he suffered detriment when he did not inherit the farm in return. In essence, he was taken advantage of by relying on the promise. In the end, the courts ruled that Sabey had a successful claim for proprietary estoppel and was entitled to receive $100,000 from the estate. Sabey’s years of underpaid/unpaid work were the only factors used for determining the equity that he should receive. His personal career choices did not warrant equity as per the judge’s decision – this is why Sabey did not receive the entire farm to remedy the situation.
Promises Broken Between Beneficiaries
The case of Cowper-Smith v. Morgan (2017) was argued before the 9 judges of the Supreme Court of Canada by League and Williams’ Darren Williams. This case featured proprietary estoppel between the beneficiaries of a will, not between a beneficiary and the will-writer. Two of the three children of the deceased established a promise wherein one of the sons, Max, would move back to the mother’s home to care for the aging mother until her death. The promise was that when the mother passes away, Max’s sister, Gloria, would sell her share of the estate home to Max. To further complicate the case, after their mother had died, Max and his brother were invalidly disinherited from the will altogether because of undue influence exercised by Gloria. In the end, the will was varied and each child received a third share of the estate, as was expected. For more detail on this disinheritance case, read our blog post here.
After receiving his share of the estate, Max was still looking for legal remedy in regard to the broken promise made by Gloria. It was evident that after the promise was made to Max, he relied on the promise by moving back to Victoria, and suffered detriment by leaving his life in England because of this promise. The case debated whether it was reasonable to rely on the promise when there was not complete certainty that Gloria would own the one third share of the estate. Gloria argued that Max’s reliance on her promise was unreasonable because at the time the promise was made they could not know, with complete certainty, that that she would inherit her share of the estate. However, the court found that Max had acted reasonably in relying on the promise because he did so knowing, with reasonable certainty, that Gloria would inherit a portion of the estate home. Events which could have possibly interfered with Gloria’s inheritance of her share, which are unforeseeable in their nature, do not diminish the reasonable certainty that the estate would be executed as planned at the time the promise was made. In the end, the court ruled in favour of Darren William’s case on behalf of Max, and Gloria was forced to sell her share of the estate home to Max.
In reviewing each of these two cases, we hope to bring light to those who have fallen victim to a broken promise in any estate related matter. If the elements of proprietary estoppel can be demonstrated before the courts, the broken promisor can be held liable, even in cases where a promise to the victim was made verbally.
If you were victim to an estate related broken promise, contact an experienced estate lawyer today. We will ensure that you receive the inheritance that you’re entitled to, whether that is through a proprietary estoppel case or not.
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.
In Canada, the vast majority of businesses are small businesses, usually owned and operated by families or sole traders. For many business owners, their small business and its assets make up a large portion of their net worth and estate’s value. It’s extremely important that they prepare a detailed estate plan. Having a comprehensive business estate plan can ensure the business continues after the owner’s death. Further, a detailed plan can help to efficiently wind up a company, allowing beneficiaries to receive their inheritance promptly if the owner doesn’t wish to continue operations after they pass away.
Though a will is the most common and best understood part of every estate plan, there are many other testamentary documents that business owners should consider incorporating in their estate plan. In this article, we’ll go over some of the most common and important documents that business owners should consider when creating their estate plan.
A Will
It’s critical that business owners have a will to ensure the continuation of their business and minimize risk of estate litigation. Business owners can use their will to transfer ownership of their company and assets to their successor or business partners. Their will can express their intentions for the continuation of the business, and who is to take over their responsibilities when they die, or lose the ability to continue working. It’s important to note that most small business owners don’t draft a separate will just for their business. Sole traders and those operating under other small business organizations will usually include business assets in their personal will.
Without a will, family, beneficiaries and your executor will have little way of knowing or proving what you intended to happen to the business. A family member who wishes to wind up the company or who doesn’t have management experience may inherit the responsibility. In some cases, it’s in the company’s best interest for your business partners to receive your portion of ownership rather than a family member. Sometimes, a company’s articles of association might mandate that shareholders are transferred ownership. In this case, business owners can choose to sell their shares and give the proceeds to estate beneficiaries. In any case, it’s important to understand your intentions, rights and obligations concerning the company when you draft your will.
You can’t use a will as a sale device, and a will can’t order the sale of the ownership to someone else. To do this, the testator would need to prepare a buy-sell agreement.
Buy-Sell Agreement
All business owners should prepare a detailed business estate plan, regardless of the business’ size.
A buy-sell agreement is a document that details who will buy the testator’s shares in the company when they die. The agreement usually includes any conditions that must be met before the shares can be sold, and the price of the shares. Usually, buy-sell agreements are made between existing owners, giving them the first rights to buy the shares.
Depending on the circumstances, it usually makes more sense to give ownership shares to those already actively involved with the company, rather than family members. Existing shareholders understand the business’s operations and can usually better ensure it remains running and profitable. Depending on the share structure of the company, this can ultimately benefit your beneficiaries more than if they had inherited partial ownership.
Succession Plan
A succession plan details how you envision the future of your company after you leave. Succession planning is an ongoing process that you should be mindful to engage with as your company grows and changes. The purpose of the succession plan is to detail how your business will continue to function without you. It helps to ensure that long-term strategies for transitioning knowledge, skills, and management are in place. This can include information on the short- and long-term future of the company, specific business plans, and who will maintain which roles in the company. Business owners often use succession plans as a way to officially document what they expect from their successors and to hold them accountable.
Power of Attorney
A power of attorney is someone you appoint to handle financial and legal responsibilities on your behalf while you are alive. It’s a good idea to appoint someone who you trust to take on this role in the unfortunate event that you become suddenly incapacitated. A power of attorney acts on your behalf up until your death. Some of the tasks that a power of attorney can handle include the business transactions that you are normally responsible for.
Reminders for Business Owners
While it’s always good to prepare an estate plan early, you should be careful to review the plan frequently. People and businesses change over time and estate plans should be updated to reflect the state of the business.
If you’re a business owner and want to begin preparing your estate plan, contact an experienced estate lawyer today. We can help guide you through the estate planning process, ensuring that your business survives you, exactly as you envision it.
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 happens when a child is harmed in a car accident? Minors (those under 19 years of age) who have been harmed in car accidents have a right to make an injury claim through ICBC. Like adults, they are entitled to no-fault benefits and may also be entitled to additional compensation through a tort claim. However, the time limits (limitation periods) that apply to the injury claims of children are different from those that apply to the injury claims of adults.
What are No-fault Claims (Part 7 benefits) and Tort Claims?
Compensation from ICBC for being injured in a car accident comes from either no-fault (or Part 7) claims and/or from tort claims.
People are entitled to no-fault benefits regardless of their fault or responsibility for the accident. ICBC no-fault benefits include some payment for rehabilitation costs for medical and physiotherapy treatments and partial wage loss replacement. It is important to note that the amounts paid by ICBC for no-fault benefits often do not cover the full cost of medical and physiotherapy treatments.
Additional compensation, for people who are at least partially not at fault for the accident, happens through a tort claim. A tort claim is intended to “make whole” a victim of an accident. Tort claim compensation includes payment for pain and suffering, and an award for wage loss and treatment costs over and above what was covered through ICBC’s no-fault benefits.
What limitation periods apply to a child’s ICBC claims?
People under the age of majority in BC (under 19 years of age) are under what is called a “legal disability”. The “legal disability” is that they are unable to sue on their own behalf and must rely on a parent or guardian to do so on their behalf. Recognizing this “legal disability”, the Limitation Actprovides that for a minor, their limitation period of two years usually does not begin to run until their 19th birthday, however, there are some important exceptions to this rule. While the limitation period is suspended for the tort portion of a child’s ICBC claims, the limitation period for a child’s Part 7 or no-fault benefits portion of their ICBC claim is an exception to the rule.
The clock is not stopped until the claimant’s 19th birthday, with respect to Part 7 or no-fault benefits. A minor, even someone who is 10 years old for example, must sue ICBC within two years of the accident date or the last day they received no-fault benefits, or their right to no-fault or Part 7 benefits will be forever lost. That is, if ICBC refuses to pay for no-fault benefits, perhaps because they believed the injuries were caused by some event other than the car accident, then a person, regardless of age, has only two years from the date of the accident or the last day ICBC paid no-fault benefits, to preserve their limitation period for the no-fault benefits portion of the claim by filing court documents.
What should parents of children injured in a motor vehicle incident do?
Parents of children injured in a motor vehicle accident should seek legal advice about their child’s legal claims from the accident and should bear in mind the limitation periods that apply to their child’s claim (both the tort and no-fault portions of their claim). Parents are responsible for protecting the legal rights of their children and should make a timely ICBC claim on their behalf if they are involved in a motor vehicle collision. If you, or your child has been involved in a motor vehicle collision, it is important to get sound legal advice. Our injury lawyers offer free consultations, can help pay for treatment when ICBC will not, do not get paid until your case is resolved and are experts in ICBC injury claims. Contact us at 250-888-0002 or via email at info@leaguelaw.com.
