League and Williams Lawyers

Category: Estate Disputes

What Can Void Gifts in a Will?

Many people assume they can gift from their estate in their will in any way they please. This isn’t always the case. Sometimes, the courts can rule a gift is void and modify a will. The first exception is for unfairly disinheriting a child or spouse. A will-writer must make adequate provisions for the support of their spouse and children. If they don’t, the courts can modify the will if there aren’t valid reasons for disinheriting.

Another exception is when a gift benefits an illegal activity or organization, or is contrary to public policy. It can be difficult to understand exactly what public policy is and what it means to go against it. A case in New Brunswick helps to clarify when courts will void gifts on these grounds.

A Gift Against Public Policy

In the case of McCorkill v. Streed (2014), the will-writer named the entirety of his estate to a white supremacist, Neo-Nazi organization in the US. The will-writer’s sister challenged the will, claiming it was against public policy. She sought to have the gift (approximately $250,000 CAD) to this organization ruled void.

The courts went through a thorough investigation of the organization’s visions, goals, history, and affiliations. Even though this organization was based in the US, the courts needed to be certain that it didn’t violate the Criminal Code. In determining the usage of the term “public policy”, the courts quoted a past case in stating that:

“The term ‘public policy’ cannot be comprehensively defined in specific terms but the phrase ‘against public policy’ has been characterized as that which conflicts with the morals of the time and contravenes any established interest of society. Acts are said to be against public policy ‘when the law refuses to enforce or recognize them, on the ground that they have a mischievous tendency, so as to be injurious to the interests of the state, apart from illegality or immorality’.”

Understanding the Law

Courts are always careful in public policy cases to not associate personal values with the values of the public.

Basically, actions which are injurious to the interests of Canadian citizens is against public policy. Upon analysis, it was clear that the organization practiced activities clearly contrary to public policy by printing hate-inspired, racist propaganda. Per section 319 of the Criminal Code of Canada, promoting hatred against an identifiable group is a criminal offence. The case identified if an estate gift to an organization whose purpose was against public policy is against public policy. In this case, the will-writer had not specified to use the funds for activity that was against public policy.

The courts decided that it was clear the organization’s sole purpose was contrary to public policy. The only way this gift could be allowed was if the organization demonstrated that the organization had changed since creating their foundational documents. It was made clear that the will-writer “stood for” the actions and ideologies of the organization. His gift was and clearly intended to promote these actions. The will-writer was ruled to have died intestate as this gift was void.

What Does This Mean for Future Void Gifts?

The Supreme Court of Canada later rejected an application for appeal of this case. This makes it clear that people can’t name hate organizations as beneficiaries of their wills in Canada. Essentially, giving estate assets to an organization that practices acts of hatred contradict public policy in Canada.

A common response to this case is, why? People are often confused as to why the law restricts people from disposing of their estate as they see fit. Ultimately, it’s your estate and you should be able to do whatever you wish with it, right? The reason is because Canada’s Criminal Code has the purpose of minimizing crime in Canada. Giving funds to hate organizations, such as the one in McCorkill, promotes their operations and keeps the organization alive.

If you’re an executor of a will with gifts you believe are contrary to public policy, contact an estate lawyer. We can help to identify whether the gift should be void and possibly begin the challenge process with you.

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.

February 26, 2021
Role of a Beneficiary: What Can and Should a Beneficiary Do?

If you’ve recently been named as a beneficiary of a will for the first time in your life, you’re probably wondering what you have to do to receive your inheritance. In some cases, beneficiaries don’t even know that they are a beneficiary in the deceased’s will until after the will-writer has passed away. Either way, a beneficiary of a will has a minimal role in the estate administration process. In most cases, the beneficiary can sit back and wait patiently for their inheritance to arrive.

The executor(s) of the will are the people responsible for administering the estate. Once they have finished the administration process, they are able to distribute the estate assets to the beneficiaries as described in the will. Beneficiaries don’t have the contribute to the administration process, and they do not have to pay any money to the executor or any one else to receive their inheritance from the estate. There are a number of inheritance scams where fraudulent people or businesses try to trick people into paying a fee to receive an inheritance that doesn’t actually exist. To reiterate, inheritances never have a fee attached to them and any gift received as part of a will is not subject to income tax.

Unfortunately, sometimes the executor of the will fails to fulfill their duties to the detriment of the beneficiaries. When this happens, the role of the beneficiary expands and beneficiaries are able to take action to ensure that they receive their inheritance in a fair and timely manner.

When Beneficiary Action is Required

While beneficiaries have a minimal role to play during estate administration, this doesn’t mean that they are left helpless at the hands of an incompetent executor. When an executor is failing to administer the estate or not properly meeting the responsibilities and duties of an executor, beneficiaries can and should take action. Depending on the executor’s actions or lack thereof, a beneficiary has different legal remedies available to exercise.

Slow Executors

Beneficiaries never have to pay money to receive an inheritance.

Executors typically have a 1-year period from the date of the will-writer’s death to finish the entire estate administration process. This is called the executor’s year. Most motions started by a beneficiary during this time will not be heard by the courts. This is a common law principle so remember that there are exceptions to this rule which can arise.

When an executor fails to administer the estate within the executor’s year, beneficiaries can begin to take action to speed up the process. There are various different types of delays – both reasonable and unreasonable. When the administration is unreasonably delayed, beneficiaries will be able to take legal action. For more information, read our blog on what can be done about slow executors.

In the most extreme scenarios, executors can be removed by the courts. This is a last resort option for courts as it is contrary to the final requests of the will-writer. For more information, read our blog on removing an executor.

Inaccurate Accounts

Once a will’s executor has finished administering the estate, they must send a detailed account of everything that went into and out of the estate. This is to ensure that the executor didn’t forget about any assets or commit any fraudulent behaviour. Beneficiaries should be extremely careful to look through the details of the account, ensuring that there are no mistakes or errors. If a beneficiary notices a discrepancy, they can begin to take action against the executor.

If a beneficiary notices an estate asset has gone missing, they can force the executor to act, proving to the courts everything that has gone into and out of the estate. For more information, read our blog on forcing an executor to act.

In the more extreme cases, a beneficiary is able to sue the executor on behalf of the estate. Since the beneficiary is not actually in possession of or the legal owner of any piece of the estate yet, they must sue on behalf of the estate. For more information, read our blog on beneficiaries suing on behalf of an estate.

If a beneficiary believes a debt belonging to the estate should be paid that was not, they can file for the courts to order the executor to pay the debt. The beneficiary will not be held liable if they are given their share of the estate and a debt is later realized to have not been paid by the executor. For more information, read our blog on the rights of beneficiaries in terms of debt.

If you’re a beneficiary of a will and are unsure about what you should and shouldn’t do in your situation, contact an experienced estate lawyer today. We will ensure that you receive the inheritance that you’re entitled to.

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

February 3, 2021
Estate Litigation: Drafting Lawyer’s Disclosure
Sometimes, a lawyer’s file containing notes and documents written during the testator’s will-writing process can be helpful in resolving litigation. However, lawyers aren’t always able to release this information. Lawyers have a certain degree of confidentiality they must adhere to. They owe this duty to the testator even after they have passed away. According to chapter 3 of the Code of Professional Conduct for British Columbia (CPC),

“A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.”

Lawyers and Confidentiality Release

There are few circumstances where a lawyer is able or required to release information on a client from their files. Further, the CPC outlines that while a lawyer must keep strict confidence on their client’s affairs, they can release such information when:
1. Expressly or implicitly authorized by the client;
2. Required by law or a court to do so;
3. Required to deliver the information to the Law Society, or
4. Otherwise permitted by the Code.
A lawyer always owes a duty of confidentiality to all of their clients.

Basically, a lawyer can only release all their information on a client if authorized by the client or the courts. People are sometimes confused, wondering why this information is confidential. However, it’s important that client information be confidential in order for a lawyer to give effective advice and clearly communicate with their clients. This ensures that lawyers understand the entire situation to the fullest possible extent and can give the best advice possible.

Client/Executor Authorization

Usually, estate litigation cases arise after the will-writer has passed. In this case, the client obviously can’t authorize the release of the information in the lawyer’s file. The executor of the will is able to authorize the release of information. Executors are appointed to administer the estate, and must act in the best interests of the beneficiaries. In order for the executor to waive confidentiality, they must sign off, agreeing for the lawyer’s file to be released. The executor has the option to allow this or not.

When the will-writer is still alive, they can allow the will drafting lawyer to release information if they choose. The executor will not be given this ability until after the testator has deceased.

Court Authorization

In some cases, the courts have to order the authorization for the lawyer to release the will drafting information. An example of when this could arise in an estate litigation case is when there is question of the validity of a will. Since the validity is in question, the executor of the will might not even be a valid executor and hence cannot authorize the release. Other cases where this can arise include when the courts believe that the release of the file is essential to a case, however, the executor is refusing to authorize the release. The courts are given the final say and can exercise this power when it appears to be necessary to resolve a case.

If you believe that the release of a drafting lawyer’s file could help with your estate litigation case, contact an experienced estate lawyer today. We can ensure that you’re properly represented and get the information you’re entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
February 2, 2021
Probate, or Proof in Solemn Form?
Probating a will and proving a will in solemn form are two different legal concepts which can be easily confused. Probating a will, known as proving a will in common form, proves your will is real and properly prepared. Conversely, proving a will in solemn form affirms the validity of a will for the courts.

Why Probate Your Will?

In BC, you must probate a will if the estate value is higher than $25,000. This excludes assets held in joint tenancy or with designated beneficiaries. The executor uses the grant of probate to prove to banks that they have authority over the estate. This helps to guarantee that valuable assets are not improperly handled after the owner passes away.

The Process of Probating a Will

To obtain a grant of probate, the executor applies to the court. They must file a requisition and evidence in support of the application including:
- A certificate of wills notice search,
- An affidavit of the executor attaching the original will and codicils to the will along with any memoranda that are referred to in the will,
- A detailed statement of the deceased’s assets and liabilities,
- The plan for distribution contained in the will,
- An affidavit advising the court of the persons who inherit under the will, those would have inherited had there not been a will and those entitled to claim against the will under the Wills, Estates and Succession Act, and;
- An affidavit confirming that those who inherit, would have inherited had there not been a will and those entitled to claim against the will have been served with the notice of probate application.
In some circumstances, other affidavits may also be needed – and it may also be necessary to inform the British Columbia Public Guardian and Trustee of the application for probate. In addition to probate, a person may also need to apply for letters of administration from the court. A full list of the probate forms is available at the Province of British Columbia’s website.

You should expect to pay approximately 1.4% of the total estate’s value, plus a $200 court filing fee for probate. If you need a grant of probate even though your assets are valued below $25,000, the fees will be waived.

Why Prove a Will in Solemn Form?

It’s not common that a will needs to be proven in solemn form.

A proof in solemn form is conducted when the courts need conclusive evidence as to whether a will is valid, and is the final will of the testator. This is usually only necessary when there is controversy over the validity of a will. In this case, the court can give the executor the burden of proving the will in solemn form. This will ultimately end the dispute and settle if the will is the valid, last will of the testator. The most common instances where proof in solemn form is required are when:
1. A beneficiary is taking action on the validity of a will. The executor must prove in solemn form that the will is valid; or,
2. Someone takes action to revoke a grant of probate after a proof in common form. The executor must prove in solemn form that the grant of probate and will are valid.
The Process of Proving a Will in Solemn Form

Proof in solemn form is an extensive process. All interested parties are notified of the process. A case in Vancouver from 2009 demonstrates when and why the courts would require a proof in solemn form.

The case of Romans Estate v. Tassone (2009) demonstrates an instance where an executor is ordered to prove a will in solemn form. Romans gave his house to Tassone, but later signed in his will that a third party, Cardinal, be given the estate home. After Romans passed away, Cardinal sued Tassone, claiming that Romans did not have the capacity to give the house to him and that he used undue influence to receive the house. The judge said that Cardinal must prove the will in solemn form in order to have grounds to sue Tassone; if the will was not conclusively valid, there was no reason to begin the trial. If this will was successfully proven in solemn form, then Cardinal would be awarded the estate because this would mean the will was a valid, final will.

In Romans’ estate trial, the will’s validity was in question, a beneficiary took action, and as a result, a proof in solemn form was required.

If you need legal advice on how to probate a will or how to prepare a proof in solemn form, contact an experienced estate lawyer who will ensure that estates are distributed as intended by the will-writer.

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 28, 2021
The Careless Estate: Beneficiaries Suing on Behalf of the Estate
Executors have several responsibilities when administering an estate. This includes accounting for all assets, debts, and money exchanges coming into and out of the estate. When the executor is ready to distribute to beneficiaries, they are typically required to provide a copy of these accounts. Depending on the value and complexity of the estate, this can be an extremely detailed, complex document. In the case of a careless executor, beneficiaries might raise questions over where certain assets and accounts went during administration.

Sometimes, an inheritance can change a beneficiary’s life, and it can be stressful waiting when the executor is not managing assets as expected. Unfortunately, some executors have attempted theft by not accounting for assets in their report to the beneficiaries. It’s important that beneficiaries proceed with caution in agreeing to the accounting details.

If a beneficiary believes the final accounts are not proper, there are two options available to them:
1. Forcing the executor to act; or,
2. Suing on behalf of the estate.
This blog will talk how about how beneficiaries can sue on behalf of the estate.

Suing on Behalf of the Estate

While beneficiaries might feel helpless during estate administration, they do have rights to ensure the executor is managing administration properly. Most importantly, beneficiaries are entitled to the accounting information during the estate administration process. An executor is required to give this information when requested by a beneficiary. Beneficiaries can keep a close eye on the estate through the accounting information if they’re suspicious of the executor’s actions.

When an asset has gone missing, it’s usually up to the beneficiaries to report it.

If a beneficiary believes an estate asset has been intentionally misrepresented, they can sue on behalf of the estate.

Suing Under WESA

According to the Wills, Estates and Succession Act, beneficiaries are allowed to sue on behalf of an estate in BC:
- To recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
- To obtain damages for breach of a right, duty or obligation owed to the deceased person.
Usually, suing an executor on behalf the estate will result in the executor being ordered to detail where the missing asset is. It may result in their removal as the executor and if they are entitled to an inheritance, can result in their removal as a beneficiary all together. In extreme cases where the executor was behaving inappropriately, they can be ordered to compensate the beneficiaries by paying from their own assets.

While it may seem like the only option, most matters like this can be resolved without help from the courts. Having an outside party, like a lawyer, speak with the executor can solve most estate problems in a much faster and easier fashion.

Beneficiaries may feel as if they do not have a lot of control over the estate administration process; however, there are options available to ensure the process is done correctly. If you’re a beneficiary that thinks an 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.
January 20, 2021
Adoption and Inheritance: What You Need To Know

While BC has relatively generous estate laws for children who have been unfairly disinherited, estate planning or litigation can become complicated for families who have either adopted children or given children up for adoption. When there are no valid reasons to disinherit, by law, parents and spouses must provide adequate provisions for the life and maintenance of the lives of their children and spouse in their wills. In blended families and families with adopted children, questions and complications can arise over the definition of who a “child” really is.

Rights of Adopted Children & Adopting Parents

In BC, a legally adopted child is treated the same as a biological child would be for estate purposes. A will provision making a gift to “my children” would, by default, include any adopted children. In some cases, children are taken care of by friends or family members of their parents, while never being lawfully adopted. There is no concept of common law adoption like there is for common law spouses; no matter how long someone is caring for a child, they are never their lawful parent unless a legal adoption takes place. A child is not entitled to a caretaker’s estate even if the caretaker was with them for the entirety of their childhood.

When an adopted child is disinherited from an adoptive parent’s will, they have the same right as a natural child to claim to vary the will. If there was an invalid reason for disinheriting the child, the will can be modified to give the adopted child their fair entitlement to the estate. This procedure will be exactly the same as for a natural born child who was never adopted, who challenges a biological parent’s unfair will.

Rights of Adopted Children & Biological Parents

Parents who have given a child up for adoption can still leave them an inheritance if they specify so in their will.

As described in section 3 of the Wills, Estates and Succession Act (WESA), when a child is adopted they are no longer entitled to the estate of their biological parent, unless otherwise specified in the will. Once a child has been adopted by another family, that child is no longer considered their biological parent’s child for estate purposes. A will provision making a gift to “my children” would not naturally include any children who have been legally adopted by someone else.

In the case of Boer v. Mikaloff (2017), a child who was given up for adoption was re-united with his birth mother late in her life. Before her death, she named her biological son as a beneficiary in her will, giving him part of her estate. The son was looking to make a will variation claim, arguing that he should be considered to have standing in the claim even though he was no longer legally her child because he had been made a beneficiary. The question the courts looked to answer was, “does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act?” In conclusion, the courts ruled that the child was a child of the adopted parent now and being named as a beneficiary of his biological mother’s will did not change this. The judge ruled that for estate purposes, no, an adopted child is not a lawful child of the biological parent. The will was not varied and the son was given the specified amount in his biological mother’s will, nothing more.

This case is consistent with the facts of the Wills Estates and Succession Act; however, it can be troubling for adopted children who develop loving relationships with their biological parents. For more information on this case, read our blog and watch our video blog on adopted children and their biological parent’s estate.

If you’re an adopted child or parent of an adopted child who is unsure of how these laws impact your situation, 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.

January 11, 2021
Financial Elder Abuse: How to Detect and Prevent It
Unfortunately, elderly parents and grandparents can be easy targets for financial abuse as people try to take advantage of their elder’s mental state. Especially with estate-related matters, family and friends have been found to unduly influence the elderly, tricking them into distributing their estate against their true intentions. Elder abuse extends well beyond undue influence and can come in many different forms. It’s important for loved ones and family members to look out for the elderly people in their lives, ensuring that they’re not being abused financially or otherwise. With this blog we hope to bring light to some common forms of financial elder abuse to ensure that all elderly people can have their estate handled and distributed exactly as they’re intending.

What Financial Abuse Looks Like

Financial elder abuse is commonly caused by family members, close friends or caregivers who already have a bit of power and influence over the elderly victim. In many cases, the elderly isn’t fully understanding or aware of what the person is doing. Often, the elderly person is too trusting of his/her family and friends, assuming the best intentions when a suspicious scenario arises. Some examples of financial elder abuse are:
- Unduly influencing an elderly person over estate-related matters;
- Blatantly lying to an elderly person for personal gain;
- Abusing power over financial accounts after being given access – such as using the elderly’s bank account to pay for their own expenses;
- Abusing power as a power of attorney, committee or estate executor;
- Forging the elderly’s signature to sign documents for them;
- Theft of property; or
- Using fraud to trick an elderly person into doing something not in their best interests.
Essentially, financial elder abuse includes anything done by someone to gain financially at the expense of an elderly person by abusing their trust, mental capacity or lack of understanding. Financial abuse can happen to anyone; however, it’s most common in elderly people due to the nature of old age and estate assets.

Detecting Financial Abuse

According to a study done by the World Health Organization, 15.7% of elderly people are subject to some form of abuse, including financial abuse.

While there are countless ways someone could attempt to abuse an elderly person financially, there are ways that family and friends can detect when financial abuse may be occurring. It’s not usually as simple as the victim speaking out about suspicious behaviour. Often times, the victim doesn’t fully understand that they’re being financially abused in the first place. Because of this, it’s up to the elderly’s loved ones to react when there are suspicious circumstances that could be financial abuse.

Depending on your involvement with the elderly’s financial accounts or personal life, there are different ways to identify financial elder abuse. To list some general indicators of financial abuse,
- Dramatic changes in the elderly’s financial position;
- Assets or property that have suddenly gone missing;
- Sudden and significant changes to the elderly’s will;
- Friends or family suddenly being overly attached and invested in the elderly’s life, specifically their financial position;
- Suspicious or out-of-character purchases/transactions;
- Large cash withdrawals from the bank; or
- An elderly person not fully understanding a significant financial situation going on in their life.
How to Help in Situations of Elder Abuse

If you’ve detected a possible case of financial elder abuse, we recommend contacting an experienced lawyer immediately. Depending on the severity of the abuse, there can be a civil or criminal case to be heard before the courts. To remedy the situation, courts can order the removal of a person of power such as a power of attorney or estate executor. In other cases, the person behind the abuse can be ordered to repay and compensate for damages caused. Even if the victim has passed away at the time of the abuse being revealed, it might not be too late to receive justice on the case.

If you or a loved one has fallen victim to financial elder abuse, contact an experienced estate lawyer today. We will ensure that the victim will be compensated for any wrongs that they have suffered.

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.
December 31, 2020
When a deceased’s assets go missing: what can be done?
The executor of an estate has several responsibilities. These include accounting for all assets, debts, and funds entering or leaving the estate. When the executor is ready to distribute the estate to the beneficiaries, they are required under BC’s Trustee Act to provide a comprehensive account of everything that went into and out of the estate during administration. This account information must include:
1. What the original estate was;
2. All the assets received by the estate; and
3. All the assets remaining to be distributed.
Beneficiaries are entitled to this information and have a legal right to request this information at any time during the estate administration process.

Assets Missing from the Estate

If an executor cannot account for an asset, they can, in some cases, be ordered to pay for this out-of-pocket.

An estate inheritance can sometimes significantly change a beneficiary’s life. It can be very stressful when the executor isn’t managing the estate as expected. Unfortunately, some executors have attempted fraud or theft by taking parts of the estate and not accounting for them. In other cases, estate assets simply go missing because of the executor’s inattention to detail or carelessness. Beneficiaries should proceed cautiously when agreeing to the accounting details, ensuring all assets are properly accounted for. While they might feel powerless during the estate administration, beneficiaries do have rights to protect their interests. If a beneficiary is suspicious of the accounts or believes an asset is missing, they should take action. They can ask the executor to prove the accounts are correct in court.

Passing of Accounts – Proving the Account’s Accuracy

When a beneficiary disagrees with the accounts provided by the executor, they can formally challenge them. This process is called a passing of accounts. A passing of accounts is a court hearing where the courts review the account to determine if the challenge is reasonable or not. The courts will consider a broad range of detailed evidence to determine if anything “went missing” or was miscalculated. In most cases, the courts will need to review the entire account and all the transactions involved. If the executor was not diligent with their record keeping throughout the estate administration process making sure to track all assets and transactions, it can be difficult to prove the account is accurate.

As described in the case of the Estate of Fannie Cleverley (2000), the purpose of the passing of accounts is to “determine whether the executor has exercised his duties under the will properly and in accordance with the law.”

Tracing the Missing Asset

In some cases, claimants have been able to prove that an estate asset has gone missing even though the executor is not in possession of that asset. The asset must then be traced in order to recover it from whoever possesses it. The person who is in possession of the missing asset will be ordered to return the asset to the estate where it will then be distributed as detailed in the will.

Reminders for Beneficiaries

Beneficiaries do not have a lot of control over the estate administration process, however, there are options available to them to ensure that the process is done correctly. If you’re a beneficiary who is suspicious that the executor may have stolen an asset from the estate, contact an experienced estate lawyer today. We can ensure that the estate is administered appropriately and the beneficiaries are given their fair share of the estate.

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.
December 18, 2020
Notice of Dispute: Preparing to Challenge a Will
To challenge a will, interested parties can issue a notice of dispute to the courts to pause the estate administration. For the majority of will challenges, the notice of dispute must be issued before the will has been granted probate. When issued, the probate courts are unable to grant probate and must wait until the notice has been dealt with. In essence, the notice of dispute will put the estate administration on hold until it is removed.

Who Can Issue a Notice of Dispute?

Rule 25-10 in the Supreme Court Civil Rules specifies the laws surrounding notices of dispute in BC. Essentially, anyone who has an interest in the estate is able to file a notice of dispute. More specifically, the people who can issue one are:
- Any executors or alternate executors of the will,
- Any beneficiaries of the will, and
- Anyone who would have been an intestate successor, assuming a will was not written and the estate was larger than what the spouse would inherit solely.
Depending on the family structure of the will-writer, intestate successors for each estate can vary. For more information, read our blog on how assets are distributed in intestacy.

As an interested party, you are entitled to a notice of probate. The executor must notify you that the will is planning to be probated soon and provide a copy of the will at least 21 days before probate is granted. If you’re someone who is entitled to a notice of probate, you’re also someone who is able to issue a notice of dispute. Further, there can only be one active notice per will.

Valid Reason for Issuing a Notice

A notice of dispute can be renewed after a year by the disputant if they have good reason for renewal.

The courts will only allow a notice of dispute when the claimant has a legally valid reason for issuing it. An example could be a beneficiary who has proof that the will was incorrectly witnessed and is therefore invalid. By issuing a notice of dispute, this beneficiary could file to have the will proven in solemn form.

On the other hand, if a person issues a notice because they’re unhappy with the terms of the will, even though the will is valid, the notice will likely be quickly dismissed. In general, the notice of dispute is meant to speed up the probate process and minimize delays while allowing interested parties a fair opportunity to raise any concerns. People who have valid reason for issuing a notice must act fast so that the will administration process can keep progressing.

Removing a Notice

A notice of dispute can be removed either by the disputant formally withdrawing it, the courts dismissing it, or when the document simply expires. The only time the courts will remove a notice is when they believe that it’s not in the best interests of the estate to uphold the notice. As an estate executor, you likely want to remove a notice of dispute quickly to begin administering the estate. To do this, you will file an application to have the noticed removed. The courts will accept the application if it’s believed that the notice is against the best interests of the estate.

A disputant has a year to take action and have the issue resolved. After a year, the notice of dispute will expire if it has not been renewed. From there, the executor can file for probate and begin estate administering.

If you wish to issue a notice of dispute and challenge a will, contact an experienced estate lawyer today. We will make you and your case a top priority, ensuring you receive the inheritance you’re entitled to, no matter what it takes.

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 16, 2020
Unjust Enrichment Claims by Family Caregivers
Family caregivers often spend many hours and great effort caring for elderly relatives, sometimes without pay or compensation. Many caregivers sacrifice paid work and career opportunities to provide care. Unjust enrichment claims can offer legal remedies for those in this situation. Unjust enrichment follows the doctrine of restitution, which says profits should not come at another’s expense. The goal of these claims is to compensate those whose services have been taken advantage of, providing effort without mutual benefit. However, they can be difficult to prove successfully.

Legal Process for Unjust Enrichment Claims

To claim for unjust enrichment, the claimant must be able to successfully prove that:
1. There was an enrichment or benefit received by the defendant;
2. A loss was suffered by the plaintiff related to the enrichment, and;
3. There was no juristic reason for the enrichment.
A successful unjust enrichment claim will be required to be paid before the estate is distributed according to the will.

The case of Kerr v. Baranow (2011), heard before the Supreme Court of Canada, helps to clarify many of the questions set forth in regard to unjust enrichment claims. As applied in this case, the courts take an economic approach for the first two requirements – that there was a clear economic value gained at the expense of another. The third requirement, juristic reason, is typically where controversy can arise, however.

Juristic reason is a vague concept. In general terms, it is a reason for the enrichment and loss suffered, like an excuse or explanation for the enrichment that the defendant can give to the courts. The judge in Kerr v. Baranow stated that, “the absence of a juristic reason for the enrichment means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff.” If the defendant can prove there was juristic reason, then the enrichment is not unjust – dismissing the unjust enrichment claim. Juristic reasons can include contracts, loving intent, statutory obligations, gifts, etc.

Legal Remedy Available from an Unjust Enrichment Claim

In unjust enrichment claims, there are two types of remedies available – constructive trusts and quantum meruit.

A constructive trust is a remedy giving the plaintiff a percentage of the defendant’s estate or property. This can arise when monetary compensation is not sufficient to remedy the situation, such as when a caregiver was significantly attending to the maintenance of a property. As an example, a constructive trust could be ordered to a plaintiff who maintained a house while an elderly person was unable to. This plaintiff would receive a percentage of the property that they maintained. This is typically a much higher form of compensation than quantum meruit.

Quantum meruit is a remedy in the form of a monetary payment, typically to pay for services of the family caregiver. Quantum meruit applies both to cases where there is and is not an enforceable contract established between the parties. In the case of a family caregiver claiming unjust enrichment, quantum meruit is a common remedy. In past cases, to determine an accurate quantum meruit value, courts have identified the average hourly wage for the services provided by the caregiver and how many hours were spent.

Family Caregivers & Successful Unjust Enrichment Claims

The law behind unjust enrichment claims is meant to reimburse caregivers reasonably for their work, regardless of if there was a contract in place or not. Most often, family caregivers are people related to the elderly person, who initially provide a minimal amount of assistance. As the person requires an increasing amount of care, caregivers can find themselves working what feels like two jobs as they devote considerable amounts of time to caregiving. The law in BC identifies that these people should be compensated for their services.

Some common examples of instances when BC courts have ruled in favour of unjust enrichment in family caregiver cases are:
- Children who reduce working hours, sacrificing his/her career to take care of their parents,
- People maintaining the elderly’s property through housework, yardwork, renovations, etc.,
- People maintaining the elderly’s financial payments – living, medical and/or rent payments, or,
- People providing emotional/physical support on a regular basis, for an extended period of time.
Challenges in Proving an Unjust Enrichment Claim

As is it common for people to provide care for loved ones, it can be difficult to prove that a family caregiving case satisfies unjust enrichment. The benefits to the cared for and losses to the caregiver must be very significant. Each case will have different circumstances and facts to help prove unjust enrichment or refute the claim. The claimant should be prepared to prove the first two requirements (as described above), while the defendant has the burden of proving a juristic reason for the enrichment.

If you’ve been victim to unjust enrichment, contact an experienced estate lawyer today. The court process may seem daunting; however, keep in mind that the majority of cases are settled outside of court. We can ensure that you receive fair compensation for the caregiving services you provided.

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 29, 2020