League and Williams Lawyers

Category: Wills and Estates

  • What is the Residue of an Estate?

    What is the Residue of an Estate?

    Almost every estate has some assets left after all the gifts have been distributed and estate expenses have been paid – this is called the residue of the estate. In some cases, the residue of the estate is the largest bequest of the will. Will-writers often name a residuary beneficiary to inherit the residue of the estate, whatever the amount may be. A frequent question that beneficiaries, executors and will-writers ask is ‘what exactly is included in an estate’s residue?’. In short, the residue of the estate is anything that is left after all estate debts/expenses/taxes have been paid and all the non-residuary beneficiaries have received their inheritances. It’s recommended that all wills include a residuary clause because there will always be some residue unless the estate is not solvent (not large enough to pay all of its debts).

    How to Calculate the Estate’s Residue

    While it’s impossible for a will-writer to come to an exact number for the value of the estate’s residue, they can make estimations. In general, the larger the estate is, the higher the estate administration expenses will be. Some of the most common expenses that must be paid before the residue of an estate can be distributed are:

    • Probate fees,
    • Debts owed by the estate such as credit card payments,
    • Taxes owed by the estate such as income tax in the month before death,
    • Executor’s fees,
    • Funeral expenses,
    • Legal expenses, and
    • Beneficiary bequests.

    Essentially, the residue of an estate is the entire value of the estate minus the above expenses (and any other estate fees).

    How Residuary Clauses are Used

    For example, a man with a total value of $100,000 in his estate wishes to gift his spouse, his two children and his sister in his will. He plans to give gifts of equal value to his children, a small gift to his sister, and the majority of the estate to his spouse. For simplicity, let’s say the estate expenses total $10,000. There are two possible ways the man could attempt to achieve his distribution goals using a residuary beneficiary:

    1. The man could have his spouse inherit $50,000 and the children inherit $20,000 each. His sister can then be named the residual beneficiary. When the man was writing the will, he assumed the estate fees would be closer to $1,000, but they ended up being much higher than he expected. In this scenario, the sister would be left with a $0 inheritance because of this residuary clause.
    2. The man could write specific bequests of $20,000 to each of his children and $10,000 to his sister. The man’s spouse can be named as the residuary beneficiary and would expect to receive $40,000.

    In both cases, one of the beneficiaries is left with a smaller inheritance than the man intended. The residuary clause is typically left for the largest bequest for this reason. In option (2), the spouse still inherits the majority of the estate as the residual beneficiary.

    Another option the man could consider if he is determined to ensure everyone receives a just share of the estate, he could name everyone as a residual beneficiary of the will. He could give the spouse 50% of the residue, the children 20% each and the sister 10%. However, this approach is only useful for simple estates of modest value.

    No Residual Beneficiaries

    As per section 44 of the Wills, Estates and Succession Act, when the will (a) doesn’t dispose of the entirety of the estate and (b) doesn’t name a residual beneficiary, the intestate beneficiaries would receive the residue of the estate. If there are no available intestate beneficiaries, the government would be given the residue. For more information on intestate succession, read our blog on how assets are distributed in intestacy. To prevent this from happening, will-writers should include a residuary clause at the end of their wills.

    If you’re a will-writer who is unsure how to handle the residue of your estate, contact an experienced estate lawyer today. We will ensure your will is properly drafted and executed as you’re expecting/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.

  • Lucid Intervals: Temporarily Regaining Testamentary Capacity

    Lucid Intervals: Temporarily Regaining Testamentary Capacity

    In order to write a valid will in BC, the writer must be able to understand and accept their will. This is called the testamentary capacity to make a will. Often, a will-writer loses testamentary capacity after suffering an injury or illness. Once the will-writer loses testamentary capacity, many assume that they never regain the capacity to make a will. This isn’t always the case. An incapable person can experience lucid intervals where they regain testamentary capacity for a period of time.

    More specifically, according to the judgement in Banks v. Goodfellow (1870), for a will-writer to have testamentary capacity they must be:

    1. Capable of understanding the act of making a will and its effects;
    2. Capable of understanding the nature and extent of their property relevant to the disposition;
    3. Capable of evaluating the claims of those who might be expected to benefit from [his/her] estate, and able to demonstrate an appreciation of the nature of any significant conflict and or complexity in the context of the testator’s life situation;
    4. Capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure from previously expressed wishes or prior wills; and,
    5. Free of a mental disorder, including delusions, that influences the distribution of the estate.

    Will-writers must be able to understand the nature of their estate, the distributions they’re making in their will and the overall impact their will is going to have.

    Lucid Intervals

    A lucid interval is a period of time where someone without testamentary capacity regains capacity. Depending on the mental state and health condition of the testator, this can be as short as a few moments. For people who suffer from a condition such as Alzheimer’s disease, they may have lucid intervals lasting an entire day or more.

    To demonstrate testamentary capacity with a lucid interval to legally change their will, an applicant won’t have to prove the illness was cured. They must only prove that the will-writer had testamentary capacity in the moment the will was made.

    Lucid Intervals Confirmed by the Courts

    Lucid intervals were at issue in the Alberta case of Zukas Estate (Re) (2016). The will writer’s testamentary capacity was questioned as he was in hospice when his will was executed. The deceased was reportedly on medications that could have affected his testamentary capacity when he wrote the will. The drafting lawyer had performed tests on the writer to ensure that he had capacity to make a valid will. About 2 weeks after the will was drafted, a codicil was made to fix an error in the will. The lawyer identified that the will-writer did not have the testamentary capacity at the time of the codicil being executed. Was this enough evidence to conclude that the will-writer didn’t have the testamentary capacity when the will was executed?

    The Court found that this wasn’t evidence of whether or not the deceased had testamentary capacity while executing the will. As stated by the judge, “all that is required of a testator is a lucid interval. The Respondents have failed to identify any evidence that overwhelms [the lawyer’s] assessment that the Deceased, at the time of giving instructions and on the date of execution, had testamentary capacity.” The time before or after a will’s execution doesn’t necessarily speak to the testator’s capacity when they wrote the will.

    Mental Illnesses

    In Re Weidenberger (Estate) (2002), the will-writer was diagnosed with a mental illness prior to writing the will. The courts identified that the will-writer must have the testamentary capacity “at the time the will was created.” The judge further mentions that, “what the Deceased’s state of mind was one year before or one year after the date of the document is not overly relevant.”

    In the end, it was determined that the will-writer had the testamentary capacity to execute their will. The mental illness, while restricting the deceased’s ability to understand the value of the estate, did not restrict their ability to understand the terms.

    Reminders for Will Writers

    The mere fact that a testator doesn’t have the testamentary capacity before or after executing a will is not sufficient evidence to prove a case for a lack of testamentary capacity because of lucid intervals. If you’re unclear of the impact of a lucid interval in regards to will writing, contact an experienced estate lawyer today.

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

  • Curing an Invalid Will: Acceptable Evidence

    Curing an Invalid Will: Acceptable Evidence

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

    Requirements Under WESA

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

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

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

    Curing Invalid Wills

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

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

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

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

    Examples of Evidence

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

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

    Examples of Evidence from Case Law

    An Unsigned Handwritten Note

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

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

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

    A Document Labelled “Will” Stored With Valuables

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

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

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

    Reminders for Will Writers

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

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

  • Probate: Getting a Grant of Probate for an Estate

    Probate: Getting a Grant of Probate for an Estate

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

    What is Probate?

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

    Who is Involved in the Process?

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

    Probate Timeline for Estate Administrators

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

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

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

    Key Takeaways

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

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

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

  • What are the consequences to Executors for breaching trust?

    What are the consequences to Executors for breaching trust?

    Executors have a duty to act in the best interests of the estate and its beneficiaries. Occasionally, executors act in breach of this trust, often accidentally. However, there are ways in which courts can impose penalties for executors breaching trust. Overall, executors have an obligation to administer the estate in a timely manner, in the interest of the beneficiaries. To summarize, some of the most common ways an executor is found to be in breach of trust include:

    • Commingling of estate assets with their own personal assets,
    • Fraudulent behaviour,
    • Not accurately reporting an estate’s assets in the detailed accounts, or
    • Failing to pay an estate’s debts.

    Depending on the severity of the breach, courts can choose a consequence to remedy the losses suffered by beneficiaries. Possible consequences that the courts will consider are:

    • Reducing or eliminating Executor’s fees;
    • Holding Executors personally liable for losses; and/or
    • Removing and replacing the executor.

    Removing Executor’s Fees

    Generally, executor’s fees cannot total more than 5% of an estate’s value.

    In cases of a minor breach, the courts may simply deny the executor from receiving compensation through executor’s fees. For example, if an executor were to act slowly and fail to administer the estate in a reasonable amount of time. The courts could find the executor failed to fulfill their duty by administering the estate in an untimely manner.

    In the case of The Estate of Lilian Lai Lien Lowe (2002), the executor was denied any compensation for her duties. Unfortunately, under the executor’s administration, the estate lost a considerable amount of money which obviously impacted the welfare of the beneficiaries. Further, the executor was looking to charge a fee much greater than the usual 2-3% of the estate’s value. Summing up, the judge stated that the executor “has demonstrably failed to exercise an appropriate level of skill and ability. Because the executor failed to fufill her duty, the fee was distributed to the beneficiaries of the will instead.

    Executors Held Personally Liable for Breaching Trust

    Occasionally, executors find themselves responsible with selling assets or making investments on behalf of the estate. Undoubtedly, all investments carry a risk of loss. However, if the executor makes an investment that a reasonable person wouldn’t have, the executor can be liable for the losses. If the investment was reasonable and simply happened to result in a loss, the executor will not be liable. To put it another way, the executor must act in a demonstrably irrational manner to be held liable for losses to the estate. The courts will typically only order this if the executor has caused the beneficiaries to suffer a significant loss.

    Removing the Executor

    Importantly, in extreme cases where executors are found in breach, the courts can order the removal of an executor. 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).

    In general, executor removal is a last resort for the courts because it inherently contradicts the final wishes of the testator. An executor will only be removed if the courts see no other option to resolve the estate administration issue at hand. If you’re looking for more information, read our past blog post on executor removal here.

    Ultimately, it’s at the discretion of the courts to determine how to handle an executor who has breached their trust. In some cases, multiple consequences are ordered against the executor of a will. To avoid this, executors must work quick and with the best interests of the beneficiaries in mind – hiring an estate lawyer can help to ensure that all the proper procedures are followed.

    If you’re a beneficiary who has fallen victim to an executor who has breached your trust, contact an experienced estate lawyer today. We can ensure that the proper steps are taken to ensure that you’re compensated for any losses suffered and the estate is administered appropriately.

    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.

  • Dying without a Will (Intestate): Who Acts as Executor?

    Dying without a Will (Intestate): Who Acts as Executor?

    If someone dies intestate (without leaving a valid will), the courts determine the estate’s distribution and the executor of the estate. In a past blog post, we discussed how an estate is distributed when someone dies intestate. In this post, we’ll identify who can be appointed executor of an estate when someone dies without leaving a valid will.

    The job of an executor can be time-consuming and stressful, but it is highly important. The executor is crucial to the correct administration of an estate. Some of the responsibilities of an executor include planning funeral arrangements, locating all of the testator’s assets, liquidating assets for distribution, filing tax returns, paying any debts owed, and distributing the estate. When the deceased does not leave a valid will, the complexity of these tasks can increase as the executor does not have specific directions to follow. In appointing an executor, the courts must be sure that the person will take the job seriously and handle the estate as the testator intended.

    Executor Priority List

    When no one applies to administrate an intestate estate, the Public Guardian and Trustee can take on the duty.

    For the courts to appoint someone as executor of an intestate estate, interested parties must apply. The person with the highest priority on the list described in the Wills, Estates and Succession Act (WESA) will become the executor.

    Section 130 WESA

    As described in section 130 of WESA, the courts will use the following order of priority:

    1. The spouse of the deceased person or a person nominated by the spouse;
    2. A child of the deceased person having the consent of a majority of the children of the deceased person;
    3. A person nominated by a child of the deceased person if they person have majority consent of the deceased’s children;
    4. A child of the deceased person not having the consent of a majority of the deceased person’s children;
    5. A successor other than the spouse or child of the deceased person, having the consent of a majority of the other successors including the successor who applies for a grant of administration;
      • A person, other than the spouse or child of the deceased person, nominated by a successor of the deceased if that person has the consent of a majority of the other successors, including the successor who nominated the person to apply for a grant of administration;
    6. An intestate successor other than the spouse or child of the deceased person, not having the consent of a majority of the other successors, including the successor who applies for a grant of administration;
    7. Any other person the court considers appropriate to appoint, subject to the Public Guardian and Trustee’s consent.

    Executor Priority in Practice

    In simple terms, the order of priority goes: the spouse, a person nominated by the spouse, a child with majority consent, a person nominated by the children, a child without majority consent, a successor of the intestate estate and lastly, any other interested party. ‘Interested parties’ can include registered professionals such as lawyers and accountants in these circumstances.

    For example, if a person dies intestate without a spouse, but with three children (two daughters and one son).

    While the executor order of priority is clear if one dies intestate, it’s always best to write a valid will naming exactly who you want to be named executor of your will. If you need help drafting your will, contact an experienced estate lawyer today.

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

  • Estate Planning: Notary, or Lawyer?

    Estate Planning: Notary, or Lawyer?

    When first setting out to write a will, many people have no idea where to start. It’s very common for a first-time will writer to underestimate the complexity of their estate, especially if they hope to maximize the value of their estate for their future beneficiaries. Individuals and families use estate planning to efficiently and lawfully pass their assets on to their loved ones.  But who should you ask for help, a notary, or a lawyer?

    In British Columbia, both notaries and lawyers are able to assist individuals with drafting their will. However, notaries have some limitations that will writers should consider before deciding which services to use. Hiring a lawyer rather than a notary is essential when seeking advice for a robust and effective estate plan, no matter how simple your asset holdings and family structure may seem. 

    Notaries and Lawyers: What are the Key Differences?

    Notaries have the authorization to witness and authenticate legal documents such as wills and powers of attorney. While they can guide the execution of these documents, they do not have the authorization to provide legal advice in other areas of law. People often use notaries to witness the signing of wills, powers of attorney, and other legal documents. This is because some individuals prefer a professional witness over asking a family member or friend for assistance.

    On the other hand, a lawyer is qualified to provide advice on a wide range of areas of law. This includes estate law, but also encompasses many other areas including criminal law, family law, and business law. This is important to will writers because a lawyer will be able to advise on overlapping areas of law which are relevant to the unique circumstances of the client and their estate. In estate law, people often call upon a notary to witness the signing of a will or power of attorney. However, they are more likely to involve a lawyer in the process of creating and drafting these documents.

    Notaries are commonly used in the estate planning and administration process for professional witnessing and authentication services.

    Limitations of Hiring a Notary to Create Your Estate Plan

    In  Society of Notaries Public of British Columbia v. Law Society of British Columbia 2017 BCCA 448, the Court of Appeal for British Columbia clearly set out the limited scope of notaries’ work in estate planning. The decision affirmed that notaries cannot prepare a will where the will writer’s assets do not immediately transfer to their beneficiaries upon death. Though this may sound ideal for will writers hoping to transfer their assets to beneficiaries as quickly as possible, this places severe limitations on the estate planning tools available and can ultimately mean your beneficiaries receive an inheritance of lower value. A notary cannot create a will which:

    • Contains a testamentary trust;
    • Contains a trust for minor children;
    • Contains a spousal trust;
    • Contains a fully discretionary trust;
    • Or contains provision for a life estate in a property

    These limitations severely restrict the ability of will writers to create an estate plan that suits their specific needs. They will not be able to make full use of trust instruments, which can be some of the most powerful tools for estate planners. For more information on the value of implementing trust instruments in your estate plan, read our article here.

    Hiring a Lawyer to Create Your Estate Plan

    In British Columbia, the courts have the power to change, or vary, someone’s will even after their passing if it is found to not provide adequate provision for spouses and children. When creating your estate plan, it’w essential to minimize the risk of litigation arising from your will after your death. If you consult with lawyers who have expertise in estate litigation, they can guide you on structuring your estate in the best way to ensure its distribution aligns with your specific wishes after your death.

    A lawyer who specializes in estate planning will have a deep understanding of the various options available to clients, such as wills, trusts, and power of attorney documents, and will be able to advise clients on the best course of action for their specific situation. This is particularly important in situations where there are complex family dynamics or high-value assets involved. Further, estate planning lawyers will be able to advise on providing care and financial planning for will writers even before their death through the appointment of powers of attorney and personal representatives. Lawyers will also be able to provide service after the death of the will writer through supporting the executor of the will in the probate process and distributing estate assets to beneficiaries.

    Estate planning, a critical aspect of one’s financial health, enables individuals and families to pass on their assets to their loved ones efficiently. Hiring a lawyer is essential when it comes to estate planning in BC, as they have the expertise and knowledge necessary to navigate the complex laws that govern the distribution of assets after death to avoid estate litigation.

    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.

  • Codicils: Making a Small Revision to Your Existing Will

    Codicils: Making a Small Revision to Your Existing Will

    It’s not uncommon for a will-writer to want to make a modification to an outdated will that they’ve written years ago. Often times, will-writers only want to make small changes to their will – maybe changing a single sentence in the will or adding a beneficiary to the will. It can be tempting to simply cross-out the sentence and handwrite a new provision underneath; however, the courts may not consider this a valid modification. Instead, will-writers should either create a new will, or create a codicil.

    You can use a codicil, usually a small document, to make amendments to a will. The document specifies any changes to the original will that the will-writer would like to make. Two people must sign and properly witness the codicil, just as they do when creating a valid will. After that, store the codicil with the original will, where it acts as an additional part of the will. Codicils are great for simple modifications, but shouldn’t be used when the changes are complex.

    Writing a Codicil vs. Re-writing the Will

    Anything that is removed or modified in the original will through a codicil will still be visible to any interested parties.

    While a codicil is straightforward, it’s not always the best option available when you want to modify your existing will. If you need to make complex changes, it’s recommend to draft an entirely new will. Codicils describing complex changes can become complicated and difficult to understand. Drafting unclear testamentary documents can expose will writers to risk of litigation after their death.

    Some common changes that would be easy to make with a codicil include:

    • Changing the executor of the will;
    • Changing who will be the legal guardians of your children;
    • Adding a new beneficiary to the will; or
    • Changing a beneficiary’s name if they have legally changed it.

    For each of these simple changes, the intentions of the testator are clear and do not have complex consequences on the rest of the original will, so a codicil is sufficient.

    When To Write a New Will

    Here are some scenarios where writing an entirely new will is suitable:

    • When an existing beneficiary of the will is to be removed;
    • If there is already an existing codicil for the will and this change would be the second codicil attached; or
    • If there are any changes related to trust accounts that are being made.

    For these scenarios, it’s much more difficult to briefly describe the change as the implications on the terms in the existing will are likely to be broad. For example, if a will-writer wishes to remove their nephew as a beneficiary through a codicil, they must specify who will receive the share of the estate originally intended for the nephew. If the nephew was going to receive multiple gifts in the will, redistributing each piece to other beneficiaries could make the codicil too complicated. Further, if privacy is a concern, a new will is more private than a codicil. After writing a new will, will writers can choose to destroy their old will.

    It’s always best to be as clear as possible when expressing your intensions in estate planning. If there is a chance that a dispute over the meaning of the codicil could arise after your death, it’s usually a better idea to simply write a brand new will.

    If you are unsure about how you should go about making a revision to your will, contact an experienced estate lawyer today. Good advice can help ensure that there are no complications in your will/codicil after you have passed away.

    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.

  • Important Limitation Dates in Estate Litigation

    Important Limitation Dates in Estate Litigation

    Various different legal remedies ensure that estates distribute as the testator intended and prevent invalid disinheritance. However, claimants must adhere to certain deadlines to initiate an estate litigation case. Typically, estate litigation cases have a limitation period of either two years or six months. The specific time restrictions, however, vary between cases based on their individual circumstances and the type of claim made.

    The Limitation Act

    While courts typically adhere closely to limitation periods, they occasionally extend these periods in certain cases.

    According to the Limitation Act, “a court proceeding in respect of a claim must not be commenced more than two years after the day on which the claim is discovered.” That is the day when the claimant became aware of the event that gives rise to the claim. It can also mean the day the claimant should have reasonably been aware. In estate litigation cases, the claim is usually discovered on or near the day that the testator passed away. In most estate litigation cases, a claimant has two years from the day of the testator’s death to take action. Exceptions exist to the standard two-year limitation period. The most common exception is for will variation claims, which have a limitation period of six months.

    Limitation periods are meant to encourage people to begin their claims in a timely manner. Beyond the typical two year window, it becomes increasingly difficult to bring forth strong evidence for the court. Limitation periods incentivize people to bring their claims before the courts as soon as possible. They can also restrict people from making absurd claims many years after the passing of a testator.

    180 Day (6 Month) Limitation Period

    Under the Wills, Estates and Succession Act, will variation claims have a 180 day limitation period from the date probate was granted. This can include will challenges, rectification claims, and unfair disinheritance cases. The limitation period for these claims starts from the date probate is granted, not the date of the testator’s death.

    Potential Exceptions to a Limitation Period

    While limitation periods are strictly adhered to by the courts, there can be exceptions made in special circumstances. The case of Chan v. Lee (Estate) (2004) is an example of when the courts extended the limitation period well beyond the conventional 180 days. The daughters in this case did not raise their claim until more than a year after probate was granted. They claimed their brothers promised to remedy the situation and fairly distribute the estate between them. The sons did not notify them of the will being granted probate with the intention of abusing the limitation period.

    Ultimately, the judge dismissed the sons’ cross-claim that the limitation date had passed and heard the daughters’ claim. The sisters could not have reasonably known how to act in their best interests while being mislead. Hence, the limitation period on their claim did not begin until the day the sisters discovered they had been lied to regarding the administration of the estate.

    Two Year Limitation Period

    Estate litigation cases typically have a limitation period of two years from the date of the testator’s death, with the exception of will variation claims.  Sometimes, the courts find it reasonable for someone to have not been aware of the death of the testator until sometime thereafter. For example, if they live outside of the country or did not keep in close contact with the testator. In such circumstances, the court can extend the limitation period for claims made by that person to two years from the date they learned of the testator’s death, if the claimant can provide reasonable evidence of their lack of knowledge at the time of death.

    An example of a case with a two year limitation period could be a fraud claim against a will’s executor. A beneficiary or other interested party would have two years from when they become aware, or ought to have been aware, that the executor has committed fraud. In some cases, the discovery is not until many years after the fact, with the 2 year clock beginning to run on the date that the claimant became aware or ought to have become aware of the fraud.

    If you think you have an estate litigation case that should be heard before the courts, contact an experienced estate lawyer today. The earlier the process begins, the more likely you are to be successful, and you will avoid any limitation periods restricting your access to legal remedy.

    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.

  • Stepchildren Challenging a Will: Estoppel if Your Biological Parent Gifts Their Estate to Your Stepparent

    Stepchildren Challenging a Will: Estoppel if Your Biological Parent Gifts Their Estate to Your Stepparent

    In BC, courts can rule a will unfair and have it revised – or varied – if it does not make ‘adequate provision for the proper maintenance and support’ of the will-maker’s spouse or children. The Courts have the authority to prevent the disinheritance of spouses and children of will writers without sufficient cause. But, what about stepchildren? According to the Wills, Estates and Succession Act (WESA), a child is ‘a natural birth child or a legally adopted child’. Unless the stepparent has adopted a stepchild, WESA does not recognize them as a child.

    It’s clear that a stepchild cannot apply to vary their stepparent’s will under WESA. However, there are other ways that stepchildren can challenge a will. These scenarios can arise if:

    Estoppel for Your Biological Parent Gifting Their Estate to Your Stepparent

    If a stepparent unfairly disinherits them, stepchildren lack the legal standing to directly request a variation of the will

    Estoppel is a legal argument used to prevent a party from breaking a promise to benefit themselves. In the context of stepchildren challenging a will, estoppel can stop a stepparent from receiving more of an estate than their spouse intended. A parent might agree to gift the entirety of their estate to a spouse because the spouse promised to include their stepchild in their own will. If the spouse later changes their will to contradict their promise, the party impacted by the broken promise may be able to make an estoppel claim against the stepparent’s estate.

    In order to have a successful claim for proprietary estoppel, the following must be present:

    • A promise is made,
    • That promise is reasonably relied on,
    • That promise is unfairly broken; and,
    • This causes detriment.

    An Example of Proprietary Estoppel

    Let’s examine a scenario that illustrates how a proprietary estoppel claim may arise. Chris is a man who has a daughter named Deb. He marries Jane, who becomes Deb’s stepmother. Chris plans to leave his estate to Jane if she outlives him, and then wants the property to pass to Deb once Jane and Chris have passed away. Chris gifts the whole estate to Jane because she has promised to include Deb in her own will. This should ensure that Deb will inherit indirectly from Chris’s estate. Deb trusts this pledge and relies on it reasonably. She chooses not to dispute the gift, because she doesn’t expect to be disinherited. Following Chris’s death, Jane breaks her promise, changing her will to pass the entire estate to her own child. Deb can no longer dispute the gift from her father’s estate, since 180 days have elapsed since his passing.

    However, Deb may have a valid claim to receive the assets that were passed from Chris’s estate to Jane. If she can demonstrate the presence of the components of a proprietary estoppel claim in her circumstances, the Courts may vary Chris’s will.

    Children and adults who have relied on a promise from their stepparent concerning their natural parent’s estate and suffered resulting loss should speak to an experienced estate lawyer as soon as possible. An experienced estate lawyer can support you in making a claim to vary a will.

    Have a question about estate disputes 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.