League and Williams Lawyers

Category: Estate Disputes

Removal of a Badly Behaving Executor in BC
As a beneficiary of a will, it can be frustrating to sit helplessly waiting while the will’s executor fails to administer the estate as expected. Unfortunately, executors sometimes cause intentional delays, are incompetent in their administration, or even abuse their powers to commit theft of estate assets. When this happens, the suffering falls on the beneficiaries – the value of estate assets changes over time, accumulated maintenance costs deplete the estate’s value, and the distribution of assets doesn’t always happen in a fair and timely manner. In these situations, beneficiaries may be able to seek removal and replacement of the executor.

Legal Grounds for Executor Removal

According to the judgement in Nieweler Estate (Re) (2019), there are four categories of conduct that will warrant a removal of an executor:
1. Endangerment of the trust property (estate);
2. Dishonesty;
3. Incapacity to execute the duties; and
4. Lack of reasonable fidelity (good faith).
The case of Radford v. Wilkins (2008) exemplifies the process through which the courts will change an executor. The factors that are considered when determining whether or not to remove an executor are:
- The testator’s choice of executor is not to be lightly interfered with,
- Clear necessity for removal in the interest of the estate’s administration must be established,
- Removal must be the only reasonable course to follow,
- Removal to be guided in the interest of the welfare of beneficiaries,
- Non-removal must likely prevent proper execution of trust, and;
- Removal cannot be not intended to punish past misconduct.
Reasons for Executor Removal

The courts will always hesitate to remove an executor because the testator specifically appointed them as part of their last wishes. However, when it is necessary to remove an executor to protect the beneficiaries’ welfare, the courts will issue an order. The courts view executor removal as a last resort option. Any interested party (someone with a legal stake in the estate) can make an application to remove the executor if they fail to fulfill their duties. Among other reasons, some of the most common grounds for executor removal include undue delay, refusal to act, and fraudulent behaviour.

Common Grounds for Removal

If the executor cannot reasonably explain the delays, the Courts can remove them from their position.

When an executor is actively working to fulfill their duties but experiences an unreasonably explainable delay. Refusal to act by an executor is when they are completely refusing to advance the administration of the estate. An executor’s refusal to act is commonly purposeful and rarely justifiable, especially since executors can renounce their responsibilities at any time.

If an executor behaves fraudulently in relation to the administration of the estate assets, it will also result in their removal. Executors also must release a full account of everything that went into and out of the estate to its beneficiaries. If the beneficiaries don’t agree with the accounts, believing that there may have been fraudulent activity or a miscalculation of estate assets involved in the accounting, they can have the account reviewed by the courts in a passing of accounts.

An Example from Caselaw

In the case of the Kajaks Estate (2016), the executor had failed to administer and distribute the estate after 9 years following the testator’s death. The executor was constantly delaying the process in an attempt to coerce the beneficiaries to agree to change the will to benefit the executor more substantially. It was evident to the court that not having received their portions of the estate for 9 years was impacting the welfare of the beneficiaries. Further, the executor demonstrated a lack of reasonable fidelity as there was no reasonable explanation for these delays. The courts granted an executor removal on these grounds so the estate administration process could move forward.

When The Courts Won’t Grant Executor Removal

The Canadian common law principle of the executor’s year is a general guideline for executors, advising that the administration process should be complete within a year from the testator’s death. During this year, we expect interested parties not to interfere because the administration process might take a long time, depending on the complexity of the estate plan. During the executor’s year, the courts probably won’t recognize any claims against the executor. However, after the first year, people can raise claims for removal due to undue delay. The executor’s year essentially gives the executor a grace period, but it’s not legally enforceable

Ways Forward for Beneficiaries

Conflicts of interest regarding executorship are generally not sufficient grounds for executor removal. In fact, it’s very common for the executor to be a beneficiary of the estate themselves. Beneficiaries expect the executor to act objectively, ensuring their personal interest in the estate doesn’t impact the estate administration process. Any arguments or tension which may arise between executors and beneficiaries are also not grounds to remove an executor. By law, the executor does not need to be friendly with the beneficiaries; they simply have to administer the estate in a timely manner, with the best interests of the beneficiaries at mind.

It is often easier and faster to avoid executor removal during the estate administration process, however, removal is sometimes the only option in cases where the executor refuses to take action or causes undue delay. If you’re a beneficiary who is suffering at the hands of an executor, contact an experienced estate lawyer today to begin solving the problem sooner rather than later.

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.
August 11, 2022
Estate Beneficiary Rights: Forcing the Executor to Act
The executor of a will has a handful of responsibilities when administering an estate – including accounting for all estate assets, debts, and money exchanges coming into and out of the estate. Once the executor finishes the administration process and is ready to distribute the estate to the beneficiaries, they typically need to give each beneficiary a comprehensive document that accounts for everything that has entered and left the estate. The value and complexity of the estate administration process can make this document extremely detailed and complex.

In the case of a careless executor, a beneficiary might raise questions over the process of administration.

Sometimes, an inheritance can change a beneficiary’s life, and it’s stressful when the executor isn’t managing the estate as expected. Unfortunately, some executors have committed fraud by stealing assets from the estate and not including them in their report to the beneficiaries. Beneficiaries must proceed with caution and ensure all assets are accounted for.

If you believe that the final accounts don’t properly represent the assets of the estate, there are options available:
1. Forcing the executor to act; or,
2. Suing on behalf of the estate.
How Can a Beneficiary Force an Executor to Act?

While beneficiaries might feel helpless during the estate administration process, they do have certain beneficiary rights. Beneficiaries have the right to the accounting information during the estate administration process. The law requires an executor to provide this information if a beneficiary requests it. Beneficiaries can keep close eyes on the estate through the accounting information if they’re suspicious of the executor’s intentions.

Passing of Accounts

When an estate asset has gone missing, it’s usually up to the beneficiaries to notice and act on it.

A beneficiary can compel the executor to act by petitioning the court for a passing of accounts. If the courts grant this motion, the executor must present to the courts all transactions, both incoming and outgoing, from the estate, from the date they took control of the estate to the date of the hearing. This process can clarify any inconsistencies in the accounts. It can track where all the estate assets went, verify what fees and debts were paid, and determine who receives what from the estate. This can be an exhaustive process, but it will show, in detail, everything that left and entered the estate accounts.

After forcing the executor to act through requesting a passing of accounts, if the beneficiary is still unsatisfied, they can sue on the behalf of the estate or look to have the executor removed.

Beneficiaries may feel they don’t have control over the estate administration process. However, they do have certain rights to ensure the process is managed correctly. If you’re a beneficiary that thinks an estate asset has been misrepresented, contact an experienced estate lawyer today to begin solving this problem sooner rather than later.

Have a question about this topic or a different legal topic? Contact us for a consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
August 4, 2022
Executor’s Fees: What You Should Know
In British Columbia, settled law entitles estate executors to remuneration for their work in administering an estate. In fact, this was restated by the Supreme Court of Canada in Cowper-Smith v Morgan, a case argued and won by League and Williams’ principle, Darren Williams. However, existing legal framework dictates the amount an estate executor can receive for their work in administering the estate, and even outlines situations where an executor isn’t eligible for compensation. Further, executor’s fees may be reduces for a number of reasons.

Standard Executors’s Fees

It is common practice to compensate estate executors for their work, even when they are not professional estate administrators. Section 88 of the Trustee Act lays out the maximum awards an estate executor is entitled to:
- Maximum 5% of the total value of the estate
- Maximum 5% of the income earned by the estate during the admin period
- Annual fee for management of assets at 0.4% of their value
The estate’s income often includes dividends on investments, which the executor holds on trust for the estate.

These remuneration percentages serve as guidelines, and not every executor will receive the maximum statutory compensation. Sometimes, will writers include provisions in their will for the executor’s remuneration, setting aside a fee they deem fair for the work done. Further, in estate litigation surrounding the renumeration of executors, the court will look to ensure that the funds awarded to an executor bears reasonable relationship to the amount of work the executor did, the and the skill they demonstrated in handling the estate.

Will writers should consider including a clause dictating the compensation their executor will receive for administration in their will.

The courts will consider the unique circumstances of the estate administration in deciding what a reasonable award to an executor is. This will often include:
- The estate’s total value, or nature of its assets
- The responsibility required of the executor
- How successfully of skillfully the executor carried out their duties
Denial of Executor’s fees

It’s important to remember that executors are fiduciaries of the estate they administer, meaning they have special legal responsibilities to act in the best interest of the estate and its beneficiaries. Breach of fiduciary duties is grounds for total removal of an executor, and any interested party can petition the courts to do so. For more on this, read our article on removing unfit executors.

Executors may receive compensation significantly lower than the statutory guidelines, or nothing at all, if they fail to administer the estate with due care and skill, or if they don’t properly perform their services. One way the law ensures beneficiaries are able to assess the executor’s administration of the estate is through a passing of accounts. This is a process that estate executors are responsible for in every estate administration. Before the beneficiaries receive their inheritance, the executor must produce a detailed account of all the money that entered and left the estate during the administration. It’s important that interested parties are always mindful of this accounting, ensuring the executor didn’t mismanage the estate either inadvertently or with malicious intent.

If the will doesn’t address the issue of executor’s fees, beneficiaries can raise a claim if they believe the executor received too much compensation. Should the courts find that the award doesn’t share a reasonable relationship with the work completed, they can reduce the executor’s compensation or deny compensation altogether.

If you’re a beneficiary concerned that the administration of an estate is being mishandled by an executor, 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.
July 15, 2022
Was it Gifted? Resulting Trust and Estate Disputes

In British Columbia, will writers have many estate planning tools at their disposal to create a plan that suits their individual needs best. In previous articles, we’ve discussed many tools which will writers can use to their advantage. However, large transfers of property, funds or other assets are often the subject of estate litigation. In this article, we’ll discuss estate litigation arising from gifts and the presumption of resulting trust.

What is Inter Vivos Gifting?

Inter vivos gifting describes when a will writer gives pieces of their estate as gifts during their lifetime. This can benefit both will writers and their beneficiaries as gifts are not subject to tax or probate fees. Gifting estate assets before the will writer dies can maximize the net value of the estate for its beneficiaries. This is because the gifted assets will not be subject to probate. In BC, assets in wills are subject to a probate fee of roughly 1.4% of the total value of the estate.

However, it is not uncommon for such inter vivos gifting to give rise to estate litigation. Sometimes, family members may claim against the estate if they expected to inherit certain assets that have already been transferred or gifted. They assert that the estate still holds the asset on a resulting trust. When a transfer, particularly of a large asset, occurs without payment and it’s not expressly clear if it was intended as a gift, a presumed resulting trust is created. Under these circumstances, the law considers the person who received the assets as a trustee. They hold the assets for the benefit of the rightful beneficiary or beneficiaries.

Avoiding Litigation and Presumption of Resulting Trust

Will writers planning to incorporate inter vivos gifting into their estate plan should always clarify when they intend a transfer to be a gift. Given the presumption of resulting trust in British Columbia, individuals must prove that they transferred the asset as a gift if a conflict arises. The presumption of resulting trust means that the courts will presume that a transfer with no consideration (payment) was not intended to be a gift to the receiver. The party claiming the asset as a gift must provide clear evidence demonstrating the intention of the transfer as a gift to rebut this presumption.

Will writers in BC can reduce probate fees on their estate by gifting some assets to family and friends during their lifetime.

When intending to transfer an asset as a gift, will writers should make it abundantly clear and avoid creating a resulting trust to prevent conflict and potential litigation. Will writers can ensure efficient and peaceful administration of their estate by planning carefully and communicating their intentions with their family and friends. Using precise language in documents relating to the transfer of the gift can help ensure there is no question of intentions which may give rise to estate litigation. To avoid any surprises to beneficiaries and to make the estate administration process as seamless as possible, will writers should discuss their estate division plans with their family.

An Example From Caselaw

In the 2005 case of Cook v. Miller (Estate), one of the key pieces of evidence to rebut the presumption of resulting trust was provided by the will writer’s solicitor. The solicitor provided an affidavit which confirmed the will writer knew the transfer of assets to a joint account with his daughter would give her immediate right of survivorship over the assets upon his death. He intended to keep the asset outside his estate and inaccessible to his other children. This, along with words to the effect that he intended to gift the asset to his daughter persuaded the court both initially and upon appeal that a resulting trust did not exist.

Providing evidence of your intentions for your estate assets can avoid ambiguity and unwanted outcomes in your estate administration. If you have a question about a gifted asset contact an experienced lawyer today. We’ll make sure your testamentary intentions are clear in your estate plan.

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

June 24, 2022
The Good Conscience Constructive Trust Approach to Wills Variation Claims
In British Columbia, will writers have many options to structure their estate in ways that suit them and their beneficiaries. In previous articles, we’ve covered the basics inter-vivos gifting and the use of trusts to minimize probate fees. This strategy can help increase the ultimate value of beneficaries’ inheritances. Unfortunately, some will writers use these tools in an attempt to subvert the requirements of the law, inadequately providing for their spouse and children. In some cases, will writers go through the effort to empty all the assets from their estate using these tools. This is often in an attempt to prevent the disinherited children or spouse from making a claim against the estate. In this article, we’ll cover one approach available to claimants in this uncomfortable position: the good conscience constructive trust.

Constructive Trusts in Estate Litigation

Rather than a will writer expressly creating a constructive trust, the law imposes it. Many circumstances may prompt the courts to impose a constructive trust over assets or funds. A constructive trust arises, for example, when someone receives funds intended for another person. The person receiving the funds becomes a trustee, holding the assets for the rightful owner, the beneficiary. They should not spend funds intended for someone else.

BC law requires will writers to make adequate provision for their spouse and children in their estate plan. BC courts have the power to change a will if it does not meet this standard.

Case law in British Columbia has developed the good conscience constructive trust over many years. It is useful when a beneficiary has a statutory right to an asset, but lacks an effective legal remedy to satisfy that right.

An Example in the Context of Wills Variation Claims

To demonstrate, imagine Person A is a will writer who decides to leave the entire value of their estate to their new partner, Person B, disinheriting their child, Person C. Will writers have a statutory obligation to provide for their spouse and children in their will. There are very few scenarios that allow for the total disinheritance of children.

Under the Wills, Estates, and Succession Act, Person C can make a claim against the estate. The courts are able to change the will to give Person C a share of the estate’s assets. However, if Person A opted to leave all or most of their estate assets to Person B in the form of gifts, there are no assets for the Court distribute to Person C. In this case, the Courts can employ a good conscience constructive trust.

How and When the Courts May Impose a Good Conscience Constructive Trust

In these circumstances, it’s clear that the will writer has deliberately used inter-vivos gifting or trust accounts to subvert the purpose of the law. Obviously, person B has benefitted from the unfair exclusion of Person C, who has a legal and equitable right to a reasonable portion of the assets. The Supreme Court of Canada recognized in Soulos v. Korkontzilas (1997) that constructive trusts can be imposed not just by standard operation of the law, but where a court finds that good conscience requires it. Disputes concerning unjust enrichment or breach of trust or fiduciary duty are not the only situations where constructive trusts apply. Generally, the Court will look for the following criteria to determine if a good conscience constructive trust is appropriate including:
- Was there an inter-vivos transfer of assets which prevent the assets from be subject to a wills variation claim?
- Was there a presence of unconscionable circumstances? Would it be immoral or unjust to allow the inter-vivos transfer to stand?
- Did the defendant have an equitable obligation to the claimant with resect to the assets?
- Would the imposition of a constructive trust have unfair consequences for the defendant?
If the Courts Impose the Constructive Trust

If the Court finds the imposition of a constructive trust on the basis of good conscience is appropriate, the equitable remedy is usually very simple. The courts will act as if it the assets had not been removed from the estate, and re-divide the assets proportionately as if the dispute was a standard wills variation claim on the basis of an unfair disinheritance.

Finally, if the assets had not been removed from the estate, the courts would re-divide the assets proportionately, treating the dispute as a standard wills variation claim based on unfair disinheritance. Above all, the courts in British Columbia have demonstrated a willingness to impose equitable remedies for wills variation claims where the law doesn’t satisfy a claimant’s rights to estate assets. If you think you have been unfairly disinherited, or are facing circumstances similar to those discussed in this article, 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.
June 13, 2022
Trustee Removal in British Columbia
Will writers often create trust accounts as part of their estate plan, giving them the freedom to specify the distribution of the trust’s assets. Trustees play an important role in the management of trust accounts, and are responsible for holding the account for the benefit of the beneficiary. Depending on the nature of the trust account, a trustee can have many different responsibilities. Once the will-writer passes, a trustee may receive very simple instructions or very detailed instructions, making the role a significant responsibility. In this article, we will cover the trustee removal process in BC which would apply to a trustee who is either unfit to fulfill their responsibilities, or who simply does not want to carry on in the position.

Reasons for Trustee Removal

First, let’s consider some reasons a trustee might be removed from their position. In British Columbia, beneficiaries of a trust can make a claim to the courts to have for trustee removal. While this can happen for a wide variety of reasons, including family issues or suspected fraud, most often the beneficiary simply does not think the trustee is doing a good enough job managing the trust. In some situations, the trustee does not have the relevant experience to manage the trust in the best interests of the beneficiaries. For example, a trustee with instructions to invest the trust funds to generate profit over time should likely have experience in investing, or the sense to hire an advisor. To invest the funds knowing they are not capable of acting in the beneficiaries’ best interests could demonstrate they are incapable of managing the trust.

Potential trustees should always clearly understand what their responsibilities will be before accepting the role.

It is not uncommon for a trustee to simply not fully understand their obligations. Often, will-writers appoint a close friend or loved one as their trustee because they trust them, without considering the obligations of the trustee. It is not uncommon for individuals to accept the role of trustee without understanding the amount of work involved in managing the trust. They might accept the role because they feel a moral duty to the appointer, or they feel honoured by the selection. In any case, a trustee must understand their expectations before accepting the role to avoid mismanaging the trust. A trustee failing to act on their duties, even due to simple misunderstanding, is detrimental to the trust and its beneficiaries.

If You’re a Trustee

A trustee in British Columbia can renounce their position at any time, though in some circumstances they will be required to find a replacement trustee before being relieved from their duties. There are many reasons why a trustee might choose to give up their role, including those listed above. It is not uncommon for trustees to have disputes with the beneficiaries of the trust, or face a major change in their personal life which makes them incapable of maintaining the trust. Under the Trustee Act 1996, a trustee can voluntarily retire as long as there will be at least two trustees remaining after they leave their role, and those trustees consent to them leaving. Trustees should note that this option is only available in situations where the trust document has not expressed a different intention for the retirement of trustees.

Beneficiaries of a Trust may Seek Trustee Removal

First, beneficiaries seeking to remove a trustee should read the trust document and see if it includes a trustee removal provision. These are common provisions which set out when and how trustees can be removed and replaced, and can provide very useful guidance for all parties involved. If there is no such provision, the courts will be able to remove a trustee on application of the beneficiaries. Under section 30 of the Trustee Act, a beneficiary of a trust, or the majority where there are multiple beneficiaries, can apply to have a trustee removed and replaced at any time.

Case law in British Columbia has established that, generally, a Section 30 application will be successful if it is established that the trustee has:
- Been dishonest;
- Demonstrated incapacity;
- Administered the trust in bad-faith;
Or
- Endangered trust assets.
The aim of the courts is always to protect the best interests of the beneficiaries and the trust assets, and will usually remove a trustee if beneficiaries can demonstrate that there is a good reason.

Are you a beneficiary hoping to remove a trustee? Are you a trustee hoping to retire from your position? Whatever your problem, contact an experienced estate lawyer today to find the best solution for your situation.

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 a
June 7, 2022
Intestacy: Who Makes the Funeral Arrangements?
When a loved one passes away unexpectedly, it may leave family and friends without any idea of who should plan the funeral or what the deceased’s preferences would have been. As a general rule of thumb, the deceased’s estate executor is the person who is responsible for and has the authority to make funeral arrangements. When a person dies intestate (without a valid will), they won’t have named an executor who would otherwise be responsible for managing their affairs after death. One might conclude that the person acting as the intestate estate executor (administrator) should arrange the funeral. However, the selection of the intestate administrator likely won’t occur until well after the funeral. So, who plans the funeral arrangements of an individual who has died intestate?

Hierarchy

Generally speaking, when there are no directions or instructions left by the deceased, the next-of-kin will be the person to make the funeral arrangements. When the next-of-kin is unavailable, the next closest relative will have the responsibility. Usually, the hierarchy of authority resembles this:
1. Spouse,
2. Children,
3. Parents,
4. Siblings, and then
5. Grandchildren.
If the deceased’s spouse cannot or does not want to arrange the funeral, the authority will pass to their children. If the children cannot take on the role, the extended family will receive the offer. This protocol is not statutory law in BC, but is the most common way people address this issue.

Instructions Left by the Deceased

The best way to avoid intestacy disputes with your estate is to prepare an estate plan as soon as possible!

Typically, people preparing an estate plan include instructions for their preferred funeral arrangements. Regrettably, the law generally does not bind instructions for funeral arrangements, and the writer cannot guarantee adherence to their instructions. The person with the authority to plan the funeral arrangements can essentially make any decisions they wish in regards to the funeral. If you have specific requests for your funeral, it’s best to speak with your loved ones so that they understand what you wish for. It’s rare for a family member to specifically go against your requests when they understand and know what you wish for.

It’s recommended that people leave instructions of how they wish to have their funeral and burial arrangements planned. When they do, it’s easy for loved ones to simply follow these instructions instead of having the autonomy to make their own decisions.

Making Funeral Arrangements

Aside from planning the actual event for the memorial service, the person organizing will have a handful of decisions they will have to make. Some of these decisions include:
- Whether to cremate or bury the body;
- Where to have the remains rest;
- Whether to have a funeral or memorial service;
- Where the funeral/memorial service is to be held; and
- How much should be spent on the service.
It’s important to understand that the person planning the funeral is not the person who pays for everything. The deceased’s estate will pay or reimburse the person who pays for the funeral, assuming a reasonable amount is spent on the service. This means that the person planning the funeral can’t spend an excessive amount and expect to be fully reimbursed.

Controversy Over Who has the Authority to Make Funeral Arrangements

In the Ontario case of Catto v. Catto (2016), the deceased’s spouse and mother argued over who had the right to bury the deceased’s ashes. The deceased died without a will and without any written instructions of his funeral arrangements. In a case like this, the courts will use evidence and circumstantial factors to make a decision over who has the authority. The courts won’t necessarily apply the hierarchy as described above. Among other factors, because the spouse was the sole beneficiary of the estate she was given priority to make the funeral arrangements of the deceased. This case helps to show that there isn’t a specific system of determining who is responsible for making funeral arrangements. In conclusion, it’s always best for you to leave instructions and give loved ones an idea of your wishes to avoid dispute.

It’s always best to avoid intestacy and prepare your estate plan as early as possible. Remember- your estate plans can always be updated at a later date with ease. If you need help preparing your estate plan – the will, funeral arrangements, power of attorneys, etc., contact an experienced estate lawyer today. We can ensure that your funeral and estate are executed exactly as you’re expecting.

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.
January 20, 2022
Storing a Will Electronically: Good or Bad Idea?
With the world quickly becoming more and more digital, people are constantly looking for new ways to go paperless. For many documents, it’s easy and safe to keep a copy on your computer, phone, or in ‘the cloud’. These methods ensure that will writers don’t lose their documents and can access them easily. When it comes to the electronic storage of wills, however, challenges can arise. Because it can be difficult to prove the authenticity of an electronically stored will, executors may find it challenging to have it cured. According to section 37 of the Wills, Estates and Succession Act (WESA), a valid will in BC is:
1. In writing,
2. Signed by the will-writer, and
3. Witnessed by 2 or more people.
These requirements make proving the legitimacy of an electronically stored will extremely difficult. Ultimately, a digital will cannot be a valid will without help from the courts. However, this doesn’t mean that digital evidence, electronic testaments and invalid wills are completely irrelevant for estate administration. When a document is considered an invalid will, but proves to be indicative of the will-writer’s final intentions, it can be cured into a valid will. Further, storing copies of a will, both physically and digitally, can be beneficial in some circumstances.

Curing Digital Documents

Not only professional documents, but also emails, text messages, notes, or voicemails could potentially be cured into valid wills.

BC’s estate laws aim to respect everyone’s final wishes and intentions. If someone doesn’t follow the proper will-writing procedures, BC courts can cure a testamentary document into a valid will. To clarify this process, let’s look at an example.

A woman, Ellen, writes a valid will in 2018 with the assistance of a will-drafting lawyer. In 2020, Ellen writes a new will on her own using Microsoft Word. She follows all the proper procedures to write a valid will, but never prints it or creates a physical written copy. Ellen also makes it clear in this electronic will that she intends to revoke the will she made in 2018. It’s clear that the will from 2020 is more indicative of Ellen’s final intentions than her 2018 will. The courts may be able to cure the Microsoft Word document into a valid will.

Statutory Law

According to section 58 of the WESA, the courts can cure the document into a valid will if it represents:
1. The testamentary intentions of a deceased person,
2. The intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
3. The intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
IIn the end, the court can cure Ellen’s electronic will and use it to administer her estate, but at what cost? The estate had to undergo the legal process of curing the testamentary document and appear before the courts to finally realize Ellen’s intentions. While creating this electronic document was better than doing nothing, Ellen could have avoided the extensive legal process if she had simply printed the will and had it properly signed and witnessed. Read our blog on curing testamentary documents for more information.

Storing Copies of the Will Electronically

Sometimes, if the original copy of the will is missing, a copy can serve as the final will left by the testator. If the original copy of the will is missing, the law presumes revocation. This means that the law presumes that the testator intended to revoke the will – either by intentionally destroying it or that they did not want it to be found. If an electronic copy of the will is to be used as the final will, this presumption must be rebutted. The claimant must prove, on a balance of probabilities, that the will writer did not intend to destroy the original copy of the will, and it was lost inadvertently. If they are successful, they then must prove the copy is a valid will (or can be cured into one).

When the original will is simply lost, having a copy of it stored electronically can be helpful. Read our blog on when the original copy of a will is required for more information.

Issues Will Writers Should Consider

While it might seem easy to have the courts cure electronic wills into valid wills, the process will be much more extensive than one may expect. Involving the courts in any dispute will lengthen the process, often making it more expensive at the same time. We always recommend taking measures to prevent any estate disputes from arising before your death. Storing a copy of your will electronically can be a good idea as a back-up plan, but it’s best to keep the original copy of your will in physical form. If you’re unable to keep your will in a safe place, some law firms are able to keep your will safe until your passing.

If you’re unsure of the best way to store your will, contact an experienced estate lawyer today. We will work to mitigate any risks of estate disputes involving your estate by advising you the best ways to properly store your 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.
November 5, 2021
Keeping Bequests Out of In-Law’s Hands

Parents are often concerned about how their children will use their inheritances. It is common to worry about assets falling outside of the family. This often happens as a result of a child’s divorce after the death of their parents. For concerned parents, a traditional gift in a will can likely to fall short of your estate planning needs. Protecting your child’s inheritance from being split with their ex-spouse presents a challenge for will writers. In this blog, we’ll discuss ways parents can ensure their child keeps their inheritance and uses it appropriately.

A Traditional Gift to a Child

The most straightforward way to give a gift in a will is to simply name a beneficiary for an asset. After the will writer passes away, the beneficiary will own the asset, and can do whatever they wish with it. For example, if the asset was a house, they could create joint tenancy ownership with their spouse, sell the home and use the proceeds to pay off their spouse’s debts. The original owner of the home has no assurance that the asset will stay in the family. An outright gift is not the best option for parents who are worried about a child’s inheritance leaving the family.

Often, parents trust that their child will keep the asset in the family. However, the asset or its value might leave the family even if the child doesn’t intend for it. If the child passes away shortly after their parents, the inheritance would pass through their estate to another beneficiary. The child didn’t do anything against their parents’ wishes, but the outcome was still undesirable from the parent’s perspective. For these reasons, giving an asset outright to a child is usually not a good idea if you wish to ensure that the asset stays in the family.

Trusts for Assets, Trusts for Funds

A trustee is appointed to safeguard the assets of a trust for the benefit of the beneficiary, according to the terms of the trust agreement.

By creating a trust, parents can have much more control over an estate asset and its use. They can create specific terms for how and when the appointed beneficiary will receive the contents of the trust. For example, if a family cabin is held in trust, parents can specify the cabin is to be shared equally by their children. They can even specify time periods in which each child can use the property.

The parent could also create a purpose trust, where trust funds are only to be used for a specific purpose. For example, the parent could leave $10,000 to their child to be used for university tuition. Parents can create any rules or conditions they wish, and the beneficiary must comply in order to access the funds. The trustee for the account will ensure that these rules are followed while distributing the funds to the beneficiary. Having assets in a trust account will keep them in the family, assuming conditions have been made to ensure this.

Reminders for Will Writers

Ultimately, parents are able to ensure their estate and inheritances are kept in their family by using a detailed and tailored estate plan. While many might trust their children to follow their wishes, sometimes it’s out of the beneficiary’s control and inheritances can end up being used in ways you would not wish for, or even imagine. It’s always best to be prepared for any unusual circumstance and trust accounts can be the best method available to do so. By using trust accounts in a will, conditions that ensure assets remain in the family and are used as intended can be created.

If you require assistance creating your estate plan, contact an experienced BC estate lawyer today. We will ensure your estate is handled exactly as you’re expecting, ensuring that your inheritance is kept in the family under all circumstances.

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.

October 13, 2021
In Terrorem Clauses: Preventing Estate Litigation in Your Will
Sometimes, will writers are aware that a gift in their will is going to cause conflict between loved ones and could lead to litigation after their passing. Will writers can create an in terrorem clause to help prevent legal conflict arising from their will. This is a clause in a will that makes a gift void if the beneficiary starts legal action challenging the will. By having an in terrorem clause in your will, you can mitigate the chances of will challenges from beneficiaries. An in terrorem clause can be valid in BC; however, there are specific guidelines.

What It Looks Like

An in terrorem clause is a provision explicitly revoking gifts to any beneficiary who initiates litigation challenging the will. The clause details the redistribution of revoked gifts. For a simple example, the will could state something along the lines of,

I declare that any beneficiary of the will shall have any benefits of the will revoked if they begin any litigation related to the will. Any revoked gifts under this provision are to fall into the residue of the estate.

While this seems straightforward, BC has strict laws on this matter. The courts have been quite particular when considering in terrorem clauses. In BC, there has yet to be a case where the courts have ruled an in terrorem clause valid.

When an In Terrorem Clause is Void

People sometimes refer to an in terrorem clause as a “no contest” or “poison pill” clause.

The case of Kent v. McKay (1982) clarifies exactly when an in terrorem clause will be voided. The three criteria for voiding an in terrorem clause are:
1. The legacy must be of personal property or blended personal and real property.
2. The condition must be either a restraint on marriage or one which forbids the donee to dispute the will.
3. The “threat” must be “idle”; that is the condition must be imposed solely to prevent the donee from undertaking that which the condition forbids.
The third condition is where most legal disputes arise. Essentially, an in terrorem clause is void if it’s contrary to public policy or doesn’t detail how to redistribute a revoked gift.

Examples in BC Case Law

In BC, there have only been a few cases disputing the validity of an in terrorem clause. Looking at the case of Kent v. McKay (as described above), the will writer had an in terrorem clause in his will which was deemed void. The will writer used the clause to prevent his children from taking action against the will. The clause restricted the children’s rights under the Wills Variation Act (WVA), so it was contrary to public policy. Under WESA and the old WVA, children and spouses are entitled to adequate provision for the proper maintenance and support of their lives. It’s important that they’re able to exercise this right if the will doesn’t make adequate provision for them. In this case, the clause may have been valid if it was not applied to the will writer’s children.

In the case of Bellinger v. Fayers (2003), the in terrorem clause was invalid because it lacked a gift over. The clause was an idle threat. In the will, the clauses stated

“IT IS MY FURTHER DESIRE, because of an expressed intention of one of the legatees to contest the terms of this my Will, that should any person do so then he or she shall forfeit any legacy he or she may be otherwise entitled to.”

This directly went against the third criteria. If the provision said that any revoked gift will fall into the estate’s residue, then it might have been valid.

The Best Way to Avoid Will Challenges

While there are conditions where an in terrorem clause would be considered legally valid, the clause won’t do anything to ease any tension or anger amongst loved ones. It can be hard, but it’s best to simply talk with loved ones and explain to them why you’re making the provisions in your will that you’re making. Hearing from the will writer and understanding the reasoning behind a bequest is usually enough to ease a lot of tension. Often, loved ones want to have their opinions and voices heard and by talking with the will writer can ease this frustration.

Further, to avoid any legal challenges to your will due to poor will writing or preparation, seek advice from an experienced BC estate lawyer. We can help to mitigate any risks of will challenges, ensuring your final wishes are respected.

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 23, 2021