League and Williams Lawyers

Author: Janice Williams

My Parent Gave More of the Estate to My Sibling: Can I Challenge the Will?
Sometimes, children are surprised when they find out their sibling is inheriting more from their parents, despite their similar relationship. They might it’s unfair and wonder if they can challenge the will and change it, even after their parents’ death. In BC, courts can vary a will that is ruled unfair. To be considered fair, does a will have to give equal provisions to children with the same relationship to the will-writer?

In short, the answer is no. A fair will by law is one that makes “adequate provision for the proper maintenance and support of the will-maker’s spouse or children”. This means that will-writers still have the testamentary freedom to create their will however they wish. The restriction is that they’re not able to unfairly disinherit a spouse or child. If your sibling is receiving more of the estate, there’s usually not much you can do. To have the will varied, claimants must prove the will didn’t provide adequate provision for their life’s maintenance and support.

For the sake of this blog post, let’s look consider an example to help understand the principles of unfair wills. Let’s say a parent elects to give $5,000 of their estate to their son, and $150,000 to their daughter.

When You Can Challenge the Will

Using the above example, with no details of the circumstances it can be difficult to determine if this provision is unfair. The courts must look at external factors and specifics of the case to fully understand the nature of the provisions. If the son chooses to challenge the will, the courts would look at many different factors in determining whether this $5,000 is an adequate provision or not. Some characteristics and factors the courts will take into account include:
- The beneficiary’s living situation,
- The beneficiary’s financial situation and needs,
- The size of the estate, and
- The nature of the estate assets.
Usually, the courts will put a heavy emphasis on the beneficiary’s financial needs. If the son was working a job as a newspaper delivery boy, he could likely prove a financial need in this example and have the will varied. If unfairly disinherited, a child might depend more on government assistance, burdening taxpayers. The child could avoid filing for bankruptcy and social assistance if they inherited a larger estate share. This is the primary function of the disinheritance laws in BC today.

When a Child is Validly Disinherited

Even if a parent has a valid reason to disinherit, they’re still able to give the child an inheritance if they choose to do so in their will.

There are exceptions to this rule. A valid, rational reason consistent with modern Canadian values must justify a disinheritance in a will, according to the Wills, Estates and Succession Act (WESA). Most circumstances allow estrangement as a valid reason for disinheritance. In the same example, if the son ran away at a young age and never returned, he likely wouldn’t inherit, and the parent could validly disinherit him. If a parent can validly disinherit a child, they can give this child as small an inheritance as they want. In most cases, this would mean leaving nothing to the child in the will. For more information, read our blog on valid reasons for disinheriting a child.

In the end, if one of your siblings received a bit more of an estate than you, there is not a significant chance of successfully challenging the will. You might be able to challenge the will if you believe your inheritance is not adequate or fair due to its extremely different value.

If you believe you’ve been unfairly disinherited by a parent or spouse, contact an experienced estate lawyer today. We will ensure you receive the inheritance that you’re entitled to – whether that means challenging the will 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.
September 21, 2021
Why Undue Influence During Will Making is Difficult to Prove

If a claimant can prove that an interested party unduly influenced the testator at the time of writing, courts in BC can rule the will invalid. Undue influence is described in British Columbia as

“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.”

Proving an undue influence claim is difficult because the influence must overpower the testator’s wishes, meaning the will doesn’t reflect their actual wishes. BC allows suggestions and persuasion and does not consider them forms of undue influence. The most common successful undue influence claims involve a will-writer tricked into giving a larger portion of their estate to an undeserving person. Usually, this is someone who recently entered the testator’s life and received a significant portion of the estate.

An Undue Influence Claim: Who has the Burden of Proof?

The burden of proof is typically on the claimant to prove that the will-maker was under undue influence at the time of writing. Although, the burden of proof can shift to the defendant if the claimant shows a special relationship between the will-maker and the other person substantially benefiting from the will – known as the presumption of undue influence. The classic example of this is when the will-maker is a parent who is dependent on one of their children for their day-to-day care. Once this special relationship is established, the person who benefited from the gift must prove that it was not made because of undue influence. If he or she cannot do this, the court can cancel or reduce the gift, or even set the entire will aside.

Will Writing While Terminally Ill

In BC, someone’s persuasion during the will writing process doesn’t qualify as undue influence.

While unsuccessful, there was a recent case in the BC Supreme Court where a woman’s godchildren were claiming her will was invalid on the grounds of undue influence. The woman was in the hospital with an inoperable brain tumour in 2016. During her time in the hospital, she rewrote her will from 2009 – writing two new wills within five days. The woman had no children; however, her godchildren argued before the courts that she was under undue influence when writing these final two wills.

They believed that the will from 2009, not the other two, represented her final intentions and should be valid. The defendants, the woman’s common-law spouse and his grandchildren, argued that the new wills expressed her mind and it represented her wishes. The new wills were similar in most aspects to the 2009 will; however, the new wills gave more to the common-law spouse and his grandchildren, at the expense of the godchildren’s shares of the estate.

The Role of Legal and Medical Professionals

On the day she wrote the first new will, she met with a doctor who confirmed her awareness of her terminal illness and her limited time left. The lawyer who helped prepare the will that day described her as very confused about why the lawyer was visiting and what he was doing with her affairs. The lawyer further explained that the woman could engage in conversation, had a clear memory of some things, but had troubles remembering things like the date and where she was. The woman also could not give the exact names of her grandchildren. Further, she was unable to answer the lawyer’s open-ended questions and needed prompts to give answers. The woman was clearly not in a sound mental state when she prepared the will.

The lawyer and her two legal assistants confirmed no signs of confusion or misunderstanding from her on the day they signed the wills. The lawyer explained clearly that the will did not have to be changed unless she wanted to make specific adjustments. The judge needed to determine if her mental state resulted from her brain tumour, the stress of her terminal illness, or if her common-law spouse had unduly influenced her.

Was This Proof of Undue Influence?

The case facts suggest that her common-law spouse likely persuaded the woman to some extent to make these changes. While there may have been significant influence, the godchildren could not prove that there was undue influence – that she was expressing something that she did not really mean in her will. She had spent nearly 30 years with her spouse, and it made sense that she would want to include his grandchildren in her will.

The judge explained that it’s not uncommon for people to rewrite their will after learning they’re terminally ill. People who are in this position tend to think about their estate and what will happen upon their passing. In the end, the burden of proof was on the godchildren to prove that the woman was under undue influence and they could not do this to the satisfaction of the courts. Even though the woman might not have been in the clearest mental state, there was no proof beyond a reasonable doubt that she didn’t intend to make these changes to her will. The court dismissed the undue influence claim, ruling that the woman had the necessary testamentary capacity to execute the wills and found no evidence of undue influence.

What This Means for Future Cases

This case helps to clarify how a claim for undue influence can be successful. Will-writing is stressful for most people, and it is assuring to know that final wishes will be honoured. In only the most extreme and conclusive cases will a court revise a person’s will. The doctrine of undue influence is meant to further ensure that will-maker’s true intentions are respected. If you think that someone you loved was under undue influence during their will making, contact an experienced estate lawyer today.

For more information, read our page on proving an undue influence claim in BC.

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.

September 10, 2021
Trampoline Parks and Personal Injury Claims
There’s no doubt that trampoline parks are enjoyable for everyone, but this fun often comes with a huge risk of injury. News stories of people who are injured at trampoline parks filing lawsuits are only becoming more frequent, as those injured at parks seek compensation for damages suffered. However, the result of these legal claims are in the news far less often. Most assume that all trampoline parks have strict safety policies, including liability waivers, verbal notices of risk, supervision and warning signs in an attempt to prevent injuries – but are these always effective, or even in place?

The primary defence for trampoline park companies facing legal action is the liability waiver that all customers must sign before entering the park. Quickly reviewing what makes a liability waiver effective, there are three essential elements that must be satisfied to waive liability of the park operators:
1. The waiver must apply to the facts of how the accident occurred;
2. The waiver must not be unconscionable; and,
3. The waiver must not contradict public policy.
Waivers and Minors

It’s important to note that the legal recourse for an injury involving a minor can be quite different than of that for adults. Parents or guardians are responsible for signing liability waivers on the behalf of minors; however, parents can’t easily waive a minor’s rights. B.C. courts have upheld that a parent cannot bind a minor to an agreement waiving their right to sue. In this blog, we’ll specifically discuss cases involving adults (those older than the age of 19).

Waivers and Adults

Participating at a trampoline park can be much more dangerous than one might think.

Recreation companies are careful to include the details of how most injuries can occur at their facilities in their liability waiver. In general, it is rare for a waiver to be drafted in a way that contradicts public policy. It’s usually difficult for adults to win a negligence case against a trampoline park. This is because they’ve typically signed a waiver giving up their right to sue if an accident happens, and these accidents are often specifically described in the waiver itself. Nonetheless, there are several active cases of injured customers at trampoline parks, including the recent lawsuit of the Victoria man who died at a trampoline park in Richmond, BC.

Fatality in BC at a Trampoline Park

Greenwood, a stepfather of three, tragically broke his neck in a trampoline park accident when he jumped into a foam pit. His wife and children are now suing the trampoline park operators for his death. The company has had over a million visitors to their park and this was the first death at the facility. The family claims that there was no supervision and the staff had handled the situation improperly after the injury occurred.

The accident scene was reported as extremely chaotic and employees were unsure if they should remove Greenwood from the pit or let the ambulance handle it once they arrived. The employees on duty during the incident had no training in first aid or CPR. The coroner said that faster medical attention could have saved Greenwood’s life.

The trampoline park’s defence is that Greenwood had failed to follow their verbal warnings and instructions and ignored the warning signs displayed inside the building. He had also signed the liability waiver, accepting risk of injury. As of July 2020, this case is still awaiting a decision from the courts. The decision will be based on whether the family can prove that the trampoline company was negligent in causing Greenwood’s death. In this case, the family is not suing on the legitimacy of the waiver; rather, that the company failed to provide a reasonable duty of care after the injury occurred. B.C. has no trampoline safety regulations, so the company didn’t have to employ staff trained in CPR or first aid. Many trampoline park patrons assume that there are regulations requiring trampoline parks to provide these safety measures.

Other Injury Claims from Trampoline Accidents

In another active B.C. case, a student severely injured his back when he landed on a support fixture between two trampolines. His allegation is that the trampoline park’s staff failed to warn him of the dangers of doing a backwards somersault on the trampolines. In a separate incident, a basketball hoop stationed above a trampoline caused a Calgary man to sever two of his fingers. The man recognized the degree of risk with these parks; however, did not expect to be leaving the park missing a finger. The company claimed that this was a “freak accident” and could have occurred at any basketball court. In yet another case in Alberta, a jump into a foam pit resulted in a man’s paralysis. He is suing for $15,000,000, in a similar suit as Greenwood.

While all of these are horrific accidents, based on the facts given, it seems unlikely that any of these lawsuits will be successful. The plaintiffs must be able to prove that the company did not reasonable notify them of the risk or that the company acted negligently, causing the injury. The trampoline park companies are careful to craft liability waivers that will be effective in scenarios like those described above, so it’s difficult to lay a successful claim against these waivers.

How You Can Avoid Trampoline Park Injury Claims

It’s no question that trampoline parks are dangerous, especially since the people going to them don’t usually know how to properly use the trampolines in a safe manner. The especially scary fact is that most people injured at these parks receive no compensation for their injuries. This lack of support can cripple families who must care for their injured loved ones without any help from the park where the injury occurred. For people planning on going to a trampoline park in the future, we urge you to be extremely cautious, follow the rules, and listen to the employees’ warnings – nothing ruins fun like an injury.

Were you or someone you know injured at a trampoline park? Even though you signed a waiver, you could still be eligible to receive compensation – contact an experienced lawyer to see if you have a case.

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.
July 26, 2021
Strategies to Maximize Your Estate’s Value
In BC, most will-writers should expect to have their will go through the probate process. This is a process where the courts verify that the will is real and legally valid. When a will goes through probate, the estate must pay approximately 1.4% of the entire estate’s value in probate fees. Many will writers want to minimize this fee to ensure the largest possible estate is left for loved ones. Unfortunately, avoiding probate isn’t an option as it is a requirement of most wills administered in BC. In general, if your estate has a value of more than $25,000, the will is required to go through probate. For full details on when probate is required, visit our page on estate administration.

Even when probate is required, there are ways to minimize the amount that must be paid in probate fees, increasing value for your beneficiaries. One of the most common strategies is keeping assets away from the estate – any assets that are not part of the estate and will are not subject to probate fees.

Giving Inter-Vivos Gifts

After retiring and preparing for the remainder of one’s life, some people recognize that they have more than enough money to support themselves. When this happens, it’s often wise to begin gift-giving before one’s death (inter-vivos gifts). Since the gift will not be in the testator’s possession, it won’t be part of their estate or will which ultimately minimizes the probate fees for the entire estate. Further, inter-vivos gift giving can have a number of benefits – for a full list, read our blog on the benefits of giving gifts before death.

Creating Trusts

Similar to gift-giving, inter-vivos trust accounts can be made to give assets in a more controlled manner. With a trust account, an appointed trustee holds the assets for the use of a named beneficiary. As the trust creator you can specify terms stating when the beneficiary is able to withdraw/use the contents of the trust. Like gift-giving, you are losing ownership of the asset, and therefore the asset will not be subject to probate. A common trust account made for this purpose is the spousal trust. For more information, read our blog on the spousal trust.

Writing Secondary Wills

Some common examples of probate assets are bank accounts and real estate.

In some cases, it’s wise to prepare two wills – one for probate assets and one for non-probate assets. Not all assets are required to go through probate. Generally speaking, a probate asset is one that requires legal authority certifying the executor access to the asset. By having two wills, the non-probate will is administered avoiding the probate courts, and the probate will doesn’t account for the non-probate will’s assets. For more information, read our blog on secondary wills and what a non-probate asset is.

Naming Beneficiaries in Your Accounts

In most registered accounts, a beneficiary can be named to become the rightful owner of the account after you pass away. Upon your passing, the account will immediately begin making payments to the chosen beneficiary and will completely avoid the will. The entire account will not be subject to probate fees. Some accounts that can have named beneficiaries include:
- Registered retirement savings plan (RRSP),
- Registered retirement income fund (RRIF),
- Tax-free savings account (TFSA), and
- Life insurance policies.
Using Joint Ownership

Joint ownership agreements are when two or more people equally own a specified asset. When a joint owner passes away, the surviving joint owner is immediately and automatically given sole ownership of the asset. A common scenario where joint ownership agreements are used is someone who wishes to give their home to their spouse if they predecease them. Instead of naming the home to the spouse in the will, they could create a joint ownership agreement now. Like RRSP or RRIF accounts, the joint owner becomes the owner of the asset while the estate doesn’t have to pay probate fees on the asset.

While the probate fee of 1.4% might seem small, it can sum up to a large chunk of money. Especially with property, as avoiding probate fees on homes can make a huge difference to the overall value of the estate. For example, if a home was worth $1,000,000 its probate fees would cost about $14,000. Will-writers should be mindful of probate when preparing their estate as it can be easy and incredibly effective in some cases to lower probate fees.

In order to ensure your probate fees are minimized, contact an experienced estate lawyer today. We can advise you throughout the estate planning process, ensuring that you minimize the probate fees that your estate will be required to pay.

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.
July 23, 2021
Per Stirpes and Per Capita: Giving a Gift in Your Will to a Grandchild

Those involved with estate administration may have seen the phrases “per stirpes” or “per capita” in a will and wondered what they mean. Generally, these terms clarify how a gift will be distributed if the originally beneficiary passes away before the will-writer.

These phrases are both Latin; per stirpes meaning literally “by branches”, “by roots” or “by the foot”. Per capita means “by the head”. It may be hard to imagine what these terms could possibly mean in estate law. To help describe the meaning of these terms, let’s use an example. Imagine a mother, Diane, is preparing her will. She has three children: Albert, Brianne and Chloe. Albert has one child, Brianne has two and Chloe has three.

Per Stirpes

If Diane writes in her will to give all of her estate assets to her three children per stirpes, this means that each child, Albert, Brianne and Chloe will receive a third of the estate. If all three children survive their mother, there will be nothing special or out-of-the-ordinary with the per stirpes provision. All three would receive their one-third share of the estate.

Let’s imagine that Brianne and Chloe predecease their mother, leaving Albert as the only surviving child during estate administration. With a per stirpes provision, Brianne’s children and Chloe’s children would receive equal shares of what would have been their mother’s inheritances. Brianne’s children would split Brianne’s share of the estate while each of Chloe’s children would split Chloe’s share of the estate. However, imagine that Chloe has more children than Brianne. Because of the per stirpes provision, Diane’s grandchildren do not all receive an equal inheritance. Brianne’s children are getting more of the estate because there are fewer of them to split between. Since Albert survived his mother, Albert’s child is not entitled to any of Diane’s estate.

Per Capita

Any inheritance a minor is entitled to will be held by the Public Guardian and Trustee of British Columbia until they’re 19 years old.

Similar to per stirpes, if Diane gave her estate assets to her children per capita, her surviving children will receive their inheritances, and their children will not receive a part of Diane’s estate

Now, let’s imagine the same scenario – Brianne and Chloe predecease their mother. With a per capita provision, the surviving children of both Brianne and Chloe would split the entirety of Diane’s remaining estate rather than splitting their parents’ shares separately. Since two children have deceased, two thirds of Diane’s estate is distributed to the grandchildren of Brianne and Chloe. Each grandchild would receive a 2/15 share of Diane’s estate. In this way, Brianne and Chloe’s children all receive the same amount. Again, Albert’s child would not be entitled to inheritance as Albert is still inheriting a third of his mother’s estate.

Neither Per Stirpes or Per Capita

If Diane gave her children one third of the estate without any per stirpes/per capita provision, the deceased children’s gifts would lapse. There is an order of priority that must be followed in this case. This could result in an alternate beneficiary, Diane’s grandchildren or Albert receiving the inheritance. In general, it’s best to reduce the chances of a gift lapsing. Be prepared by either writing a contrary provision or including a per stirpes/per capita statement in your will. For more information, read our blog on lapsed gifts and the order of priority that is followed.

As you can see, the best way to distribute gifts in your will depends on your unique situation – in some cases, a per stirpes clause is better than per capita and vice versa. It depends on the intentions of the will-writer and their family circumstances. If you’re still unclear about the difference between per stirpes and per capita, the Heritage Trust Company has a great illustration of the difference on their terms and definitions page.

If you need help creating your will or your estate plan, contact an experienced BC estate lawyer today. We will ensure your estate is handled exactly as your expecting and that you know who is receiving your estate in any circumstance that might arise.

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.

June 28, 2021
Executors Quitting: Can an Executor Quit the Job of Administering the Estate?

The job of an executor is not easy; there’s a number of different responsibilities to prepare the estate for distribution. Many executors agree to take on the role without fully understanding the responsibilities and duties that it entails. Many executors feel overwhelmed and like they’ve taken on a second job once they start administering the estate. They sometimes wonder if they can quit and appoint someone else as the executor. If an executor has already started administration and wants to quit, they have limited options.

Quitting After Administration has Already Begun

Executors can receive executor’s fees to compensate for their work, even if the will doesn’t specify it.

In short, no – executors can’t usually quit before they finish the job once the administration process has begun. Before an executor can leave their position, the courts must approve a petition for removal. This is only necessary if the executor has already started the estate administration process. If the executor has a valid reason for requesting removal, courts can grant it.

An example of a valid reason could be an extreme personal health emergency. If you change your mind halfway through the administration process because it’s too difficult or you lack time, it’s not a valid reason to get removal as executor. To get a petition for removal approved by the courts, the executor must provide detailed accounts of all estate transactions. Essentially, they must leave the estate in a state where another person could easily take over.

Other Options for Executors

If the executor is in the middle of administering an estate and wants to quit, there are options available. Many executors choose to hire professionals to assist them. Depending on the specific issues the executor is having with the administration, accountants or lawyers can be very helpful. While the executor has the authority to handle the estate’s assets, others can assist them with their duties.

If you’re an executor wanting to quit, simply stopping estate administration is not a good option. It could result in you being held liable for resulting losses. Beneficiaries of the will can take action to force the executor to speed up the process. If the executor continues to unduly delay the administration of the estate, they can be removed and held personally liable for any losses suffered by the beneficiaries as a result of the mishandling of the estate. Leaving the executor’s duties untouched is never a good option for an executor, and an executor who finds themselves at their wits end should seek professional assistance with their duties.

Resigning Before Administration has Begun

Before being legally appointed executor of the will, the named executor can resign from their role. As described in section 104 of the Wills, Estates and Succession Act, this is called renunciation of executorship. The executor does not need to provide any reason for resigning; they simply must file an official document with the courts. After renunciation of executorship, the executor can’t “go back” and try to gain executor status at a later time. If there is an alternate executor named in the will, they will be appointed the duties of executor. If there is not, an interested party can apply to be the administrator, similar to the process of an executor being chosen in an intestate estate.

When the will-writer is still alive, it’s easiest to simply notify them that you do not want to be their executor after they pass away. This way, the will-writer has the option to name someone else who they want to be their estate’s executor, avoiding a lengthy renunciation of executorship and reappointment process after their death. You will not have to file any official documents with the court if the will is changed to name someone else as the executor.

If you’ve been named as an executor of an estate and you do not want to take on this role, contact an experienced lawyer today. We can work to ensure that you are lawfully removed as executor when it’s an option, or help to make the administration process as easy as possible.

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.

June 14, 2021
Common Estate Planning Mistakes

Due to the nature of estate planning, it’s important that any errors are identified before it’s too late. By the time the plan is executed, the testator has already passed away and is unable to clarify any ambiguities. In this blog, we hope to identify some of the most common errors will-writers make and how to avoid them.

Choosing the Wrong Executor

The duties of an estate executor are by no means simple and can often be exhaustive. Will-writers should work with their executors to make sure they know what they’ll be tasked with. The last thing you want is for your executor to do a poor job, harming the interests of your beneficiaries. Further, if an executor is unaware that they were named as your executor, they may renunciate (or decline) the executorship. To avoid this, will-writers should get the approval from their executor(s) before appointing them in the will. It’s a good idea to name alternate executors in case the primary executor is not able or declines the role. For more information, read our blog on choosing the right executor.

Mistake 1: Failing to Frequently Review and Update the Will

If you prepared your will early, there will be many changes in your life which warrant revisions to your will. These include getting married, buying a car, investing in property, or having a child. Whenever there is a significant change in your life or your assets, you will want to modify your will. To make a change to your estate plan you can either write an entirely new will, or prepare a codicil. Codicils are best suited when the desired changes are simple. An entirely new will might be more appropriate when the necessary changes are more significant.

Mistake 2: Not Choosing a Legal Guardian for Children

When parents fail to name a guardian in their will, the courts decide who will be the child’s guardian.

It’s usually unlikely that both parents will pass away before their children reach the age of 19. While unlikely, it can and does happen in rare circumstances. While it is terrible to contemplate, it is important to prepare for this tragic circumstance in your estate plan, rather than compound the tragedy should it occur. If both parents pass away before their children reach the age of 19, a legal guardian will need be appointed. Parents can name a guardian in their will to ensure that they have someone who they can trust to take on this responsibility. For more information, read our blog on naming a legal guardian in your will.

Mistake 3: Not Making a Residuary Clause

Because of administration costs and taxes that arise after death, it is often impossible to know your estate’s exact value. To avoid leaving assets unnamed, will-writers often make a residuary clause in their will. This usually looks something like, “the residue of my estate is to be given to my spouse.” If there is no residuary clause, the residue of the estate falls into intestacy and is distributed according to intestacy laws.

Mistake 4: Forgetting About Digital Estate Assets

In today’s day-in-age, everyone has numerous digital assets – photo collections, social media accounts, email accounts, and many more. Just because these assets have no physical presence doesn’t mean that they should be ignored in your will. Maybe you have a specific person in mind who you know will appreciate a certain digital asset. Sometimes, login information to accounts such as email can be extremely helpful for estate executors as they work to administer your estate. For more information, read our blog on preparing digital assets in your estate.

Mistake 5: Overestimating the Size of the Estate

While it’s not common for people to outright miscount their assets and accounts, people do forget about the taxes and fees that arise after they pass away. After your passing, your estate is still responsible for paying any debts owed and taxes incurred in the time prior to your death. Further, most wills are required to go through probate where, in British Columbia, they will pay approximately 1.4% of the total estate value in probate fees. To avoid accidentally giving a loved one a minimal piece of your estate, you should familiarize yourself with the fees or debts that your estate will be expected to pay.

Mistake 6: Forgetting About Pets

While pets aren’t considered “assets” in BC law, this doesn’t mean you can’t include plans for them in your will. What will-writers can do is name a caretaker for their pets and start a trust account for the pet. This way, you have control over (a) who will keep your pet and (b) the funds available for the maintenance of the pet. For more information, read our blog on how to provide for your pet in your will.

Mistake 7: Improperly Managing Multi-jurisdictional Estate Assets

Many people have significant assets in different provinces, or even overseas. Those who do must prepare a multijurisdictional estate plan. Different provinces and countries have varying estate laws and this can mean writing a will that is valid in multiple jurisdictions is challenging. To prevent assets in multiple jurisdictions from causing problems, it is wise to create an estate plan that can accommodate out of province or out of country assets. In some cases, this might mean making multiple wills (one in each jurisdiction where there are assets). Other times, it might mean making a single will with specific provisions to properly address each area’s estate laws.

Mistake 8: Not Specifying a Survivorship Period

By default in BC, there is a 5-day survivorship period. This means that unless the will states otherwise, if a beneficiary of a will dies within 5 days after the will-writer’s death they will be considered by the law to have passed before the will-writer for estate purposes. Rather, the will-writer’s other beneficiaries will receive the remaining piece of the estate. It’s usually recommended that people extend this survivorship period to the time that they estimate it will take for the estate administration process to complete. For more information, read our blog on survivorship periods. Will-writer’s can also specify what they’d like to have happen if a specified beneficiary dies before the will is administered, for example, a will-writer could specify that the share that would have gone to their deceased child be distributed to that child’s children in equal shares.

If you need help preparing your estate plan or simply want someone to review your will, contact an experienced estate lawyer who understands BC’s estate laws. We can help to ensure that there are no mistakes in your estate plan and that your will is executed exactly as you’re intending.

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.

June 2, 2021
Will Challenges Affect All Children, Even Those Not Challenging

BC has some of the most favourable estate laws for children who have been unfairly disinherited by their parents. The courts insist that parents provide ‘adequate provisions for the proper maintenance and support’ of their children unless they have legally valid reasons to not do so. When children believe they’ve been unfairly disinherited, they can challenge the will. Some might be surprised to know that under s.61(4) of the Wills, Estates and Succession Act, the courts will treat any will variation challenge as a proceeding on behalf of all the children, even those not directly involved in the challenge.

Will Challenges on Behalf of All the Children

When one child begins a will challenge, it is likely that all of the children will be impacted. Some children could be left with less inheritance than expected, while others are given more of the estate.

In order to disinherit someone, the will-writer must have a reason that is valid, rational, and consistent with modern Canadian values.

The most common type of will challenge arises when a parent completely disinherits one child, but splits the estate equally amongst their other siblings. The child challenges the will before the courts, who may modify the will to make provision for the disinherited child. The other children are usually opposing the challenge, defending their case. In these instances, the children are usually arguing on their own behalf trying to maximize their inheritance.

In some cases, a child who defends against a will challenge might even benefit from the variation of the will. The case of Graham v. Chalmers (2010) shows how this might happen in BC.

Defending Against Yourself?

In the case of Graham v. Chalmers, the will-writer, Delores, had named her two children, Janet and Sandi, and her two grandchildren as beneficiaries of her will. Delores had a legal obligation to provide an adequate, just and equitable provision to Janet and Sandi, though there was no legal obligation to give an inheritance to her grandchildren. Delores elected to equally distribute the estate amongst the two children and two grandchildren, 25% each. However, Janet found this distribution problematic because both of the grandchildren were Sandi’s children. In essence, 75% of the estate was being given to Sandi’s “side of the family” and 25% to Janet’s.

Janet challenged the will, claiming that she was not given enough of the estate. The courts considered what ‘adequate provision’ means in this scenario, and concluded that the will did not provide adequately for Janet. The will was varied to give Janet and Sandi each 40% of the estate, and the grandchildren 10% each. In this case, Sandi was defending the claim as the executor, however, she ended up benefitting from the successful challenge. Instead of receiving 25% of the estate, she ended up with 40%.

An Example From Case Law

In Bowling Estate (Re) (2022), the BC Supreme Court considered an application from a beneficiary who had sought legal advice when the executor ignored their questions about the estate administration. The deceased had appointed one of her four children as executor, and divided the estate equally among the children. Administration was somewhat delayed, as it took over one year to receive a grant of probate. However, the estate wasn’t complicated as there wasn’t conflict between children regarding their shares, and the estate was mostly liquid.

One year after probate was granted, one of the siblings asked the executor questions about the administration, and was ignored. The executor never answered these questions, or explained why she was ignoring them. The executor began distributing assets from the estate, and her sibling continued to ask questions about the administration. Eventually, the sibling retained a lawyer, hoping to force the executor to answer her questions transparently and provide estate accounts. Both the executor and the sibling claimed costs ranging from $10,000 to $11,500 for their expenses relating to the application and the formal passing of accounts.

The Opinion of the Court

In general, reasonable legal fees related to estate administration are covered by the estate. The judge had to consider if the executor’s conduct was so improper that she should not be able to recover her legal expenses from the estate, and if it was reasonable for the sibling to recover her $11,500 in legal fees for bringing the application. The judge pointed out that there were two other siblings who had chosen not to participate in the application, who had no objections to the administration or the formal accounts. They would be adversely impacted by an order to assign costs to the estate, as it could lower the total value of their respective shares by up to $5000.

The significant impact of an order for costs upon the other beneficiaries was a key reason for the court’s decision. The judge ordered that the executor could only recover $6000 from the estate, and was liable for the remaining $4000. Finally, the court acknowledged that the sibling had acted reasonably in her concern for the executor’s lack of communication, but pointed out that the conflict could have been resolved outside of court. Because the sibling consented to the formal accounts, the litigation only took place because the sisters couldn’t agree on costs. The court ordered the executor to personally pay $6000 to her sibling in costs.

Ultimately, the executor was personally liable for her unreasonable delay and lack of communication to some degree. However, the court was clear that conflicts of this nature, particularly where are beneficiaries will suffer as a result of the conflict, should be resolved outside of court where possible.

Reminders for Beneficiaries

As a beneficiary, you can still be impacted by a will variation challenge that you are not directly involved in. If other beneficiaries claim they’ve been unfairly disinherited, you should be prepared to lose parts of your inheritance. Any will challenge in BC will proceed on behalf of everyone who may have been unfairly disinherited or unjustly compensated. If you’re unsure how you might be affected by a family member’s will challenge, 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.

May 28, 2021
Executor Passes Away, Who Finishes Administering the Will?
When a will writer dies, the executor named in their will handles the administration of the deceased’s estate, ensuring the estate is distributed as intended. This can be a lengthy process, especially when executors are handling large, complex estates. In some cases, the executor passes away before they’re able to finish the estate’s administration. When this happens, what happens to the original will writer’s estate? Who is responsible for finishing the estate administration? The Wills, Estates and Succession Act (WESA) provides guidance on who becomes responsible for the remaining administration of the estate.

The Executor’s Executor Administering Both Estates

As described in s.145 of the Wills, Estates and Succession Act (WESA),

“If a deceased will maker was an executor of a person who died before the will maker, the executor of the deceased will maker has all the rights, powers, rights of action and liabilities of the deceased will maker with respect to the estate of the deceased person.”

This means that the executor of the deceased executor’s will becomes the executor of both wills. For example, Terry writes a will naming Grace as his executor. Terry passes away and Grace begins administering Terry’s estate. Before completing the administration, Grace also passes away. In Grace’s will, she named Paul as her executor. After Paul has been granted probate on Grace’s will, he is to administer her estate. Further, Paul must finish Grace’s duties as Terry’s executor and administer the remainder of Terry’s estate. In the end, Paul is left administering both estates.

Executor Died Without a Will

Executors are able to refuse executorship before they begin administration.

Using the same example as above, let’s imagine that Grace never wrote a will, hence she doesn’t have an executor who will take on the role of both hers and Terry’s executor. In this case, somebody must apply for a grant of administration from the courts to finish Terry’s estate administration. As for Grace’s estate, she dies intestate. For more information, read our blog on who acts as executor when someone dies intestate.

Should multiple people apply to become Terry’s estate administrator, s.131 of the WESA specifies the following order of priority of who will take on the role:
1. A beneficiary of the will who has majority consent from all of the beneficiaries.
2. A person nominated by the beneficiaries who has majority consent from all of the beneficiaries.
3. A beneficiary of the will who has minority consent from all of the beneficiaries.
4. Any person the courts and the Public Guardian and Trustee consider to be appropriate.
To finish the application for the grant of administration, after applying for the grant they must remove the deceased as the executor and finally be granted probate as the new executor. From there, the new executor can finish the estate administration.

Executor Died Before the Will Writer

If the executor dies before the will writer, there is a different course of action in determining the executor. Since the estate administration hasn’t started yet, the alternate executor named in the will can take over, or the will writer can appoint a new executor. Will writers are able to name multiple alternate executors in case the primary executor is unable to or unwilling to take on the role. If there is no alternate executor named in the will, then a grant of administration must be obtained from the courts.

To avoid having an executor who you didn’t intend to administer your estate, we recommend naming alternate executors in your will. If you need assistance preparing your will, contact an experienced estate lawyer today. We will help to ensure your estate is handled exactly as your expecting, without any unexpected executors stepping in.

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.
May 25, 2021
I Need to Make a Change to My Will: Who is Authorized to Do So?

It’s not uncommon for will writers to want to make changes to their will at some point. In fact, will writers are encouraged to frequently review their wills and make changes where necessary. Sometimes, will writers are in a different city than the hard copy of their will, or can’t access it. A question that arises is: “can someone make a change in my will for me, if I authorize and certify it?”. In short, no – the will writer is the only person who is able to make changes to their will. In this blog, we’ll look at the different ways that will writers can make valid changes to their wills and when the courts will make changes to wills.

Will Writer Changing the Will

As of June 23, 2020, witnesses are able to electronically witness a will in BC through a video conference.

Will writers can make changes to their existing will by either making a codicil or re-writing the will altogether. A codicil is a supplementary document which specifies the changes the will writer wishes to make to the original will. Whether creating a codicil, or a whole new will, the changes must be written, signed by the will writer in the presence of two or more witnesses and signed by these witnesses.

When will writers follow the proper procedures, it’s relatively easy it make a legally valid change to their will. Complications arise when will writers don’t have their changes witnessed, assuming the previous witnessing of the document is still valid. When this happens, the courts are sometimes able to validate the change. The change must be clearly representative of the writer’s final intentions. As seen in a recent BC case, using white-out could be ruled to be a valid change to a will.

Power of Attorney, a Spouse, or Children Changing the Will

A common misconception people have is that their power of attorney (POA) is able to make modifications to their will. A POA is given the authority to make financial and legal decisions on someone’s behalf. However, POAs are never authorized to make edits to their testator’s will. This is important because POAs are often appointed when someone is most vulnerable, being of old age or poor health. Further, no spouse, child, or any family member is able to make an edit to another person’s will.

The will writer must be present at the time of any edits being made and able to sign the document. Only the writer of a will has legal authority to make edits to it. Family, POAs and friends can persuade a will writer, but they can’t physically make the provisions or place undue influence on the writer to make changes.

Courts Changing the Will

In some cases, BC courts will vary a will when it’s ruled to be unfair. This isn’t a traditional change to the will, as it is done after the writer has passed away. In BC, children and spouses of will writers are entitled to ‘adequate provision for the proper maintenance and support of their lives’ from the estate. When a will writer fails to make this provision, the courts will vary the will to remedy this. A recent case in BC demonstrates when the courts would vary a will to provide for children who have been unfairly disinherited.

The courts can also rectify a will when it’s believed that there was an error made by the will writer. The claimant must be able to prove that the error wasn’t reflective of the will writer’s final intentions.

What Can You Do?

If you’re in a scenario like the one above, seemingly unable to make a change to your will, there are other options available. If you’re in a different physical location than your original will, you could re-write the will exactly as you had before. In this new will, you would need to include a provision stating that you’re intending to revoke any previous wills you have written. If you are physically unable to write a will, you can have someone assist you in the preparation. In order for this to be valid, you, the will writer, must be present, and understand and approve of the contents of the will. Further, a signature is still mandatory.

If you wish to make a change to your will, contact an experienced estate lawyer today. We will ensure that any change you wish for is a valid change and your will won’t be questioned or modified upon your passing.

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.

May 17, 2021