League and Williams Lawyers

Category: Wills and Estates

  • Invalid Wills and Suspicious Circumstances: Knowledge and Approval

    Invalid Wills and Suspicious Circumstances: Knowledge and Approval

    A will must have knowledge and approval of the terms of their will in order for it to be valid. They must also have had testamentary capacity when drafting it. In BC, lack of knowledge or approval of a will is grounds for ruling the will invalid. The courts presume that a duly executed will is valid. When disagreements arise, people may wonder what knowledge and approval of a will really means.

    Essentially, the will-writer must understand the terms of the will, and they must know what they are signing. The will-writer must understand the general nature of what they are giving away. These are mandatory requirements for a valid will in BC. Some circumstances that may indicate the will-writer did not have the proper knowledge and approval of their will include:

    • Physical or mental handicaps restricting the ability to see or hear,
    • Language barriers,
    • Significant changes from previous wills in the final moments of the will-writer’s life,
    • Beneficiaries being heavily involved in writing the will,
    • Dependency on a beneficiary, physically and/or emotionally,
    • Isolation from close friends and family, or;
    • The will-writer not having read the will.

    Challenging a Will for Lack of Knowledge and Approval

    Knowledge and approval is only one requirement (of many) for a will to be valid.

    In BC, there is a presumption of validity for will-writers. This means that people who challenge a will must rebut the presumption. However, the burden of proof can be passed on to the defendant if the will-writer was unduly influenced or not aware of the terms of the will. Further, if a claimant can demonstrate suspicious circumstances surrounding the drafting of the will, the burden shifts to the defendant. Suspicious circumstances are circumstances where it is questionable if the will accurately expresses the mind of the will-writer.

    When suspicious circumstances arise, the defendant must prove that the will-writer understood and approved of their will. If the defendant can prove this, the court may rule the will valid, dismissing the challenge.

    Lack of Knowledge and Approval Example

    A common example of a client who may lack knowledge and approval of their will is an elderly, recent immigrant to Canada who is not fluent in English, or struggles with translation of legal language. A lawyer prepares their will, but they may not fully understand the will’s contents. Regardless, they proceed to sign the will when it has not been written exactly as they intended.

    A family member later chooses to challenge this will, bringing up the possible impact of the language barrier on the will-writer’s understanding of the document. The burden of proof is then on the executor of the will, not the challenging party, to prove that the will-writer understood and approved of the document regardless of the language barrier. Another important examples arises where the will-writer does not understand the nature and extent of property they are giving away.

    Reminders for Beneficiaries

    While in some cases it’s clear whether or not the will-writer understood and approved of their will, that is not always the case. There is no clear-cut definition for knowledge and approval, and it can be up to the defendant to prove the validity of the will in cases of suspicious circumstance. The circumstances, the will-writer’s previous wills, and even their behaviour and medical history can play an important role in determining to what extent knowledge and approval can be established.

    You can challenge a will if you believe you were wronged, especially due to a lack of knowledge and approval. Contact an experienced estate lawyer today to ensure you receive the estate that you’re entitled to.

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

  • Proprietary Estoppel: Broken Promises in Estate Planning

    Proprietary Estoppel: Broken Promises in Estate Planning

    Unfortunately, people break their promises, sometimes with vast consequences suffered by one party. In estate related matters, people can make life-changing decisions based on promises made to them. When a promise is made, but the promisor’s will says otherwise, or they simply change their minds, those who are victim to the broken promise may have reasonable grounds to challenge the estate.

    Elements of Proprietary Estoppel

    In BC, the courts will look for three elements in determining whether proprietary estoppel is evident or not:

    1. A promise is made,
    2. That promise was reasonably relied on, and
    3. Due to this reliance, the claimant suffered detriment when the promise was broken.

    These elements can seem awfully vague; however, we’ll analyze two different cases in BC to help establish the extent to which these elements must be satisfied.

    Will-Writer Said One Thing, the Will Says Another

    A successful broken promise claim or proprietary estoppel case will demonstrate all three of the above elements.

    The case of Sabey v. Rommel (2014) featured a farm employee, Sabey, who had a proprietary estoppel case when he was promised he would inherit the farm by the owner. In exchange, Sabey would be payed less for his work relative to the other employees on the farm. After the owner had passed away, her will specified that the farm was to be given to someone else. Sabey had a very close relationship with the farm owners as he lived on the farm, took horseback riding lessons on the farm and helped maintain the farm before the owners’ deaths. The court went through each of the three elements of proprietary estoppel in determining if the will should be modified to fix the broken promise.

    When deciding whether a promise was made or not, the courts examine whether an assurance or representation was made by the owner that the claimant will have some right to the property. The promise can be made simply through words or conduct and does not need to have the elements of a valid contract. As evidence, Sabey had an invalid codicil left by the owner stating that Sabey was to inherit the farm. The codicil was invalid because it was not properly witnessed. The courts determined that it was clear a promise was made with an assurance that Sabey would inherit the farm.

    Looking at the second element, the judge had to determine whether it was reasonable for Sabey to rely on this promise. Based on the invalid codicil evidence, it was clear that it was reasonable for someone in Sabey’s position to believe that they would inherit the farm. Further, the judge ruled that Sabey had in fact relied on this promise because it “altered his position or changed his course of conduct because of the assurance that he would inherit the farm.” Sabey had chosen not to pursue a professional dressage career path, got a job at a company near the farm and gave a significant amount of time and labour to maintain the farm because of this promise. This made it clear to the courts that Sabey had relied on this promise.

    The final element, detriment, was satisfied because through Sabey’s reliance on the promise and significant pay reductions, he suffered detriment when he did not inherit the farm in return. In essence, he was taken advantage of by relying on the promise.  In the end, the courts ruled that Sabey had a successful claim for proprietary estoppel and was entitled to receive $100,000 from the estate. Sabey’s years of underpaid/unpaid work were the only factors used for determining the equity that he should receive. His personal career choices did not warrant equity as per the judge’s decision – this is why Sabey did not receive the entire farm to remedy the situation.

    Promises Broken Between Beneficiaries

    The case of Cowper-Smith v. Morgan (2017) was argued before the 9 judges of the Supreme Court of Canada by League and Williams’ Darren Williams. This case featured proprietary estoppel between the beneficiaries of a will, not between a beneficiary and the will-writer. Two of the three children of the deceased established a promise wherein one of the sons, Max, would move back to the mother’s home to care for the aging mother until her death. The promise was that when the mother passes away, Max’s sister, Gloria, would sell her share of the estate home to Max. To further complicate the case, after their mother had died, Max and his brother were invalidly disinherited from the will altogether because of undue influence exercised by Gloria. In the end, the will was varied and each child received a third share of the estate, as was expected. For more detail on this disinheritance case, read our blog post here.

    After receiving his share of the estate, Max was still looking for legal remedy in regard to the broken promise made by Gloria. It was evident that after the promise was made to Max, he relied on the promise by moving back to Victoria, and suffered detriment by leaving his life in England because of this promise. The case debated whether it was reasonable to rely on the promise when there was not complete certainty that Gloria would own the one third share of the estate. Gloria argued that Max’s reliance on her promise was unreasonable because at the time the promise was made they could not know, with complete certainty, that that she would inherit her share of the estate. However, the court found that Max had acted reasonably in relying on the promise because he did so knowing, with reasonable certainty, that Gloria would inherit a portion of the estate home. Events which could have possibly interfered with Gloria’s inheritance of her share, which are unforeseeable in their nature, do not diminish the reasonable certainty that the estate would be executed as planned at the time the promise was made. In the end, the court ruled in favour of Darren William’s case on behalf of Max, and Gloria was forced to sell her share of the estate home to Max.

    In reviewing each of these two cases, we hope to bring light to those who have fallen victim to a broken promise in any estate related matter. If the elements of proprietary estoppel can be demonstrated before the courts, the broken promisor can be held liable, even in cases where a promise to the victim was made verbally.

    If you were victim to an estate related broken promise, contact an experienced estate lawyer today. We will ensure that you receive the inheritance that you’re entitled to, whether that is through a proprietary estoppel case or not.

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

  • Business Estate Plans: How Business Owners Can Prepare For Their Future

    Business Estate Plans: How Business Owners Can Prepare For Their Future

    In Canada, the vast majority of businesses are small businesses, usually owned and operated by families or sole traders. For many business owners, their small business and its assets make up a large portion of their net worth and estate’s value. It’s extremely important that they prepare a detailed estate plan. Having a comprehensive business estate plan can ensure the business continues after the owner’s death. Further, a detailed plan can help to efficiently wind up a company, allowing beneficiaries to receive their inheritance promptly if the owner doesn’t wish to continue operations after they pass away.

    Though a will is the most common and best understood part of every estate plan, there are many other testamentary documents that business owners should consider incorporating in their estate plan. In this article, we’ll go over some of the most common and important documents that business owners should consider when creating their estate plan.

    A Will

    It’s critical that business owners have a will to ensure the continuation of their business and minimize risk of estate litigation. Business owners can use their will to transfer ownership of their company and assets to their successor or business partners. Their will can express their intentions for the continuation of the business, and who is to take over their responsibilities when they die, or lose the ability to continue working. It’s important to note that most small business owners don’t draft a separate will just for their business. Sole traders and those operating under other small business organizations will usually include business assets in their personal will.

    Without a will, family, beneficiaries and your executor will have little way of knowing or proving what you intended to happen to the business. A family member who wishes to wind up the company or who doesn’t have management experience may inherit the responsibility. In some cases, it’s in the company’s best interest for your business partners to receive your portion of ownership rather than a family member. Sometimes, a company’s articles of association might mandate that shareholders are transferred ownership. In this case, business owners can choose to sell their shares and give the proceeds to estate beneficiaries. In any case, it’s important to understand your intentions, rights and obligations concerning the company when you draft your will. 

    You can’t use a will as a sale device, and a will can’t order the sale of the ownership to someone else. To do this, the testator would need to prepare a buy-sell agreement.

    Buy-Sell Agreement

    All business owners should prepare a detailed business estate plan, regardless of the business’ size.

    A buy-sell agreement is a document that details who will buy the testator’s shares in the company when they die. The agreement usually includes any conditions that must be met before the shares can be sold, and the price of the shares. Usually, buy-sell agreements are made between existing owners, giving them the first rights to buy the shares.

    Depending on the circumstances, it usually makes more sense to give ownership shares to those already actively involved with the company, rather than family members. Existing shareholders understand the business’s operations and can usually better ensure it remains running and profitable. Depending on the share structure of the company, this can ultimately benefit your beneficiaries more than if they had inherited partial ownership.

    Succession Plan

    A succession plan details how you envision the future of your company after you leave. Succession planning is an ongoing process that you should be mindful to engage with as your company grows and changes. The purpose of the succession plan is to detail how your business will continue to function without you. It helps to ensure that long-term strategies for transitioning knowledge, skills, and management are in place. This can include information on the short- and long-term future of the company, specific business plans, and who will maintain which roles in the company. Business owners often use succession plans as a way to officially document what they expect from their successors and to hold them accountable.

    Power of Attorney

    A power of attorney is someone you appoint to handle financial and legal responsibilities on your behalf while you are alive. It’s a good idea to appoint someone who you trust to take on this role in the unfortunate event that you become suddenly incapacitated. A power of attorney acts on your behalf up until your death. Some of the tasks that a power of attorney can handle include the business transactions that you are normally responsible for.

    Reminders for Business Owners

    While it’s always good to prepare an estate plan early, you should be careful to review the plan frequently. People and businesses change over time and estate plans should be updated to reflect the state of the business.

    If you’re a business owner and want to begin preparing your estate plan, contact an experienced estate lawyer today. We can help guide you through the estate planning process, ensuring that your business survives you, exactly as you envision it.

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

  • Valid Reasons for Disinheriting a Child

    Valid Reasons for Disinheriting a Child

    For people who are unfairly disinherited, BC has some of the most sympathetic laws in all of Canada. However, parents can disinherit their children from their will if they have valid and rational reasons. Many provinces allow will-writers to completely disinherit their adult children, giving the will-writer nearly complete testamentary autonomy. However, BC courts regularly vary unfair wills that are guilty of disinheriting children for invalid reasons.

    Why BC Courts Modify Unfair Wills

    Upon first hearing this, people wonder, why can BC courts modify someone’s will? In BC, the will-writer uses a will as their final opportunity to do right by their family members. If the testator leaves a child without adequate provision, it could leave them requiring financial aid in the future. The will-writer’s disinheritance of their child could burden tax-payers, as the aid probably comes from government services.

    Basically, BC courts recognize that each person has a right to do what they want in their will – testamentary autonomy. However, this freedom has to be balanced with the best interests of society as a whole.  That’s why BC does not allow disinheritance without valid or rational reasons.

    Valid Disinheritance in BC Law

    According to the Wills, Estates and Succession Act:

    “Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”

    If the will-writer fails to make adequate provision for proper maintenance or support, the courts have the ability to change the will to reflect what they deem to be adequate, just and equitable in the circumstances. This could include large modifications of the main provisions of a will.

    What Makes a Reason Valid?

    To properly disinherit an adult child or a spouse, the will-writer must have reasons that are:

    1. Valid – a true fact;
    2. Rational – a logical connection to the disinheritance, and;
    3. Consistent with modern Canadian values – not racist, sexist, discriminatory, etc.
    A child in BC can be disinherited if the reason is valid, rational and consistent with modern Canadian values.

    If the reasons for disinheritance are not valid, rational and consistent with modern Canadian values, the courts can modify the will.

    Generally, the most common reason for disinheritance is estrangement. Estrangement is when two people are not on friendly terms and refuse to communicate with one another. If a child is the primary determinant in the estrangement, this is typically a valid and rational reason for a parent to disinherit them. Like all reasons for disinheritance, it’s largely dependent on the individual situation as to whether the reason is rational or not. Courts will deem a reason as rational if a reasonable parent could choose to disinherit for the reason given. Importantly, this is not to be confused with saying a reasonable parent would always choose to disinherit for the reason given.

    Examples of Valid Reasons for Disinheritance

    The case of Holvenstot v. Holvenstot (2012)is a case where the courts allowed disinheritance. Disinherited by his mother, a son appealed to the BC Supreme Court to alter her will. A number of purported reasons for the disinheritance were addressed by the court, some of the main reasons shown to be true were:

    1. The son lied about growing marijuana on his mother’s property which ended in the mother being arrested and convicted for drug possession;
    2. The son tried and failed to have the mother declared mentally incompetent by the court;
    3. The son kept numerous items of the mother’s, requiring her to bring legal action against him to get them back, and;
    4. The son tried to trick the mother into giving him ownership of her land.

    The son had to prove the irrationality of these reasons, given the determination that the above facts were true. Ultimately, the judge ruled the reasons as rational due to their logical connection to the disinheritance. The courts ruled that a reasonable parent could make the decision to disinherit their child in the above circumstances. Additionally, none of these reasons for disinheritance violated modern Canadian values.

    How to Properly Disinherit a Child

    As a parent who wants to disinherit a child from their will, you should prepare a document detailing exactly your reasons for the disinheritance. Providing specific details and examples will help the courts understand the reasons for disinheriting the child. The courts are unlikely to overrule a disinheritance if you present a reason that is valid, rational, and aligns with Canadian values.

    If you’re concerned about disinheritance in your estate planning – 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 Dispute Case: Changing an Unfair Will

    Estate Dispute Case: Changing an Unfair Will

    A recent BC Supreme Court case involved unfair wills with an estate distributed unequally amongst sons and daughters. The case of Grewal v. Litt (2019) involved six children and their parents’ mirror wills. The wills were drafted to reflect cultural traditions not in accordance with Canadian values under the Wills, Estates and Succession Act (WESA). When the siblings were all young, the Litt family immigrated to Vancouver from India and lived on a farmland. The family maintained a successful farm business. Their property property had a value of approximately $9 million at the time of trial. Upon the death of both the parents, their will stated that:

    • Each of the four daughters were to receive $150,000 (about 1.7% of the total value of the estate), and;
    • Each of the two sons were to receive the rest of the estate’s value, evenly split amongst the two (about $4.2 million or 46% of the estate each).

    Details of the Case

    In court, the daughters claimed the will was unfair and that their parents discriminated against them based on their gender. They argued that they contributed just as much, if not more than, the brothers to the family farm. They further explained how the parents discriminated against them throughout their lives, giving the sons more gifts and less chores to do. The daughters argued that this was due to Sikh traditions where it is common practice to favour sons over daughters.

    In BC, the courts have the power to revise unfair wills and invalidate wills.

    Conversely, both sons agreed that the will was unjust, but disagreed on the notion of an equal estate distribution among all siblings. The sons acknowledged that their sisters should inherit a larger portion of their parents’ estate, but they couldn’t reach a consensus with their sisters on the exact amount. The sons argued that the parents’ testamentary autonomy should still be respected and they as sons should receive a higher share of the estate – the will should be varied but it should also not be split evenly amongst the six children.

    In the End, Was the Will Unfair?

    The case went through a thorough analysis of the contributions of each of the children on the family farm. The purpose was to determine if, according to the Wills, Estates and Succession Act, “the will provided an adequate provision for the proper maintenance and support of the will-maker’s spouse or children.” If the court deemed the will did not, it would vary the will to represent an adequate, just and equitable distribution for all the children, without rewriting it.

    Ultimately, the judge ruled that the parents had a moral obligation to their daughters and their will was unfair as it did not meet that obligation. To remedy the situation, the judge varied the will to give the daughters each 15% (up from 1.7%) and the two sons each 20% (down from 46%) of the parents’ estate. This is approximately $1.35 million to the daughters and $1.8 million to the sons. Although the division isn’t equal, this ruling offers a more equitable distribution than the parents’ original plan in their wills. The ruling persevered the parents’ traditional wishes for their estate to the extent possible without falling into discrimination that is not compatible with modern Canadian social values.

    This case helps to exemplify the purpose of the Wills, Estates and Succession Act and how it can help those who have been disinherited unfairly. This case shows how an unfair will can be revised to reflect the will writer’s primary intentions, while also doing right by the succeeding spouse or children.

    If you or someone you care about has been left out of an estate unfairly, the lawyers at League and Williams are here to help, please call 250-888-0002 or email us at info@leaguelaw.com for a free consultation.

  • Estate Law Explained in English, Punjabi & Hindi: Helping those Unfairly Disinherited

    Estate Law Explained in English, Punjabi & Hindi: Helping those Unfairly Disinherited

    Can those unfairly disinherited challenge a will in BC?

    Unfortunately, many people in British Columbia discover that they have been unfairly excluded from an estate by their spouse or their parent. Often, the reasons given for the exclusion are unfair or even discriminatory.  Sometimes the exclusion could have been motivated by cultural tradition.

    Unfair reasons for disinheritance may include:

    • Being the wrong sex,
    • Liking or marrying the wrong partner,
    • Studying the wrong subject,
    • Choosing the wrong career,
    • Practicing the wrong religion; or,
    • Simply being the less favored child.

    Sometimes, a sibling or other person has exercised undue influence or has taken advantage of a person with questionable capacity to make changes to their estate. Sometimes the will maker is under a mistaken belief about the disinherited person.

    When a person has been disinherited by a spouse or parent, there are many circumstances where the disinherited person can challenge the estate, however, the time allowed to do so is limited.

    Avoid costly mistakes, learn about BC estate law

    What adds insult to injury is that many people are unaware of their rights under British Columbia law to challenge the unfair will of a parent, adopted parent or spouse. To this end, League and Williams has produced a series of estate law blogs and estate law video blogs (in English, Punjabi and Hindi) to improve awareness and knowledge of BC Estate Law and help those who find themselves unfairly disinherited.

    BC estate law video blogs in English

    Fixing a broken will; what can the court do? (in English)

    https://league.dojogakure.com/posts/broken-will-court-fix

    Undue Influence – when will makers are persuaded to disinherit (in English)

    https://league.dojogakure.com/posts/persuaded-disinherit-undue-influence-will-maker/

    Disinheritance – that’s it you’re out of the will! (in English)

    https://league.dojogakure.com/posts/disinheritance-thats-it-youre-out-of-the-will/

    Can adopted children challenge their former parents’ will? (in English)

    https://league.dojogakure.com/posts/adopted-childrens-estate-dispute/

    Disinherited? Reasons a BC estate can or should be challenged? (in English)

    https://league.dojogakure.com/posts/disinherited-reasons-bc-estate-can-challenged-video-blog/

    Who can challenge an unfair will? (in English)

    https://league.dojogakure.com/posts/video-blog-unfair-will-estate-disputes/

    BC estate law video blogs in Punjabi and Hindi

    Sometimes language is a barrier to understanding a person’s rights under BC estate law, making those who do not speak or write English fluently at a higher risk of being unfairly disinherited from an estate. To address this, we have translated our information on BC Estate Law into Hindi and Punjabi and are working to better serve those who are a part of the Punjabi, Hindi and Chinese communities who find themselves unfairly disinherited in BC.

    For those who speak Punjabi, League and Williams is working with Gurinder Bains to produce the following video blogs and improve service to this group of clients.

    Why having a will is important (Estate Law video blog in Punjabi)

    https://www.youtube.com/watch?v=8p-itEXn4Ng

    Undue Influence in Estate Planning (Estate Law video blog in Punjabi)

    https://www.youtube.com/watch?v=fFqLASF2LFo

    Disinherited? We can help. (Estate Law video blog in Punjabi)

    https://www.youtube.com/watch?v=_YXaKl26Ab4

    Challenging a Will: Time is Limited. (Estate Law video blog in Punjabi)

    https://www.youtube.com/watch?v=LwpvaW26RfI

    For those who speak Hindi, League and Williams is working with Mayuri Ganatra to produce the following video blogs and improve service to this group of clients.

    Estate Law Video Blog 1 in Hindi

    https://youtu.be/xaEMYMqXhts

    Estate Law Video Blog 2 in Hindi

    https://youtu.be/mh0FusIq-EE

    Estate Law Video Blog 3 in Hindi

    https://youtu.be/M68UeviVlcQ

    Estate Law Video Blog 4 in Hindi

    https://youtu.be/lIpzER-jifE

    Disinherited? Seek legal advice, free consultations offered.

    If you or a loved one have been unfairly disinherited by a parent’s or spouse’s estate in British Columbia, contact our lawyers for a free consultation at 250-888-0002, or via email at info@leaguelaw.com.

  • Fixing a Broken Will – What can the court do?

    Fixing a Broken Will – What can the court do?

    Hello and welcome to this week’s blog on the law.  In past video blogs, we’ve talked about reasons why people challenge wills.  Undue influence and unfairness are two common reasons.  A third reason is that the will does not meet the formal drafting requirements for a valid will – that is the will itself is “broken” because it does not meet the three basic requirements in order to be valid.  This blog will discuss what the basic requirements for a will in British Columbia are and what the court can do to fix a broken will.

    What are the 3 basic requirements for a valid will in British Columbia?

    There are 3 requirements for a valid will in British Columbia, these are:

    1.  First, the will must be in writing;
    2.  Second, the will must be signed at the end, and;
    3.  Third, it must be properly witnessed.

    Prior to fairly recent changes to BC law in 2014, if a will was missing one of these key elements, for example, if it was not witnessed, the courts would invalidate the will.  While the courts could invalidate a broken will, they were not, prior to 2014, able to fix a broken will.

    If a British Columbia will fails to meet the basic requirements, can the courts fix it?

    In 2014, the legal framework surrounding wills and estates in British Columbia changed with the introduction of new legislation called the Wills, Estates and Succession Act.  One of the biggest developments contained in the new law was something called a curative provision.  This means that in cases where a will does not fully satisfy the formal requirements, the courts can now cure, or fix, the deficiencies in the broken will and pronounce a will valid.

    What must be done in order for a BC court to fix a broken will?

    In order to be able to invoke these powers to fix a broken will, the court must be satisfied of two things:

    1. First, the court must be satisfied that the document is authentic. Essentially this means the court asks, was this document prepared by the deceased? and;
    2. Second, and most importantly, the court must ask, does this document truly represent the intentions of the deceased.  That is, is it a fixed and final expression of the deceased’s wishes?  Or in other words, did the person making the document mean for it to be their final will?

    The courts, in determining whether a document represents a valid will, will look to a wide variety of evidence.  This evidence includes: the presence of the deceased’s handwriting; whether the will had witness signatures; whether the document revoked previous wills; did the testator include plans for funeral arrangements; and did the testator include specific gifts.

    Want your last wishes respected? Avoid creating a broken will in the first place.

    Since the new laws have come into force, people have creatively tried to prove a number of documents as being valid wills.  These range from handwritten notes on scrap paper, to journal entries, to letters.  Although the courts are given broad power, the further a document departs from the formal requirements of a will, the harder it is for the courts to find it embodies the deceased’s testamentary intention.  In the end, it is always best to seek the advice of a lawyer in finalizing your will.  Failing to do so can mean your final wishes will be ignored.

    I hope you have learned something about the law from this blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.

    Matthew Melnyk is an associate lawyer with League and Williams.  Matthew practices in the areas of injury law, estate disputes and marine law.  He is a competent lawyer who practices as part of the League and Williams team and may be reached at 250-888-0002 or via email at info@leaguelaw.com.  League and Williams offers free consultations and has built their practice on client satisfaction. 

  • Disinheritance: That’s It – You’re Out of the Will!

    Disinheritance: That’s It – You’re Out of the Will!

     

    Reasons for disinheritance must be both true and rational

    This week we’ll discuss some of the reasons, some understandable, some much less so, and completely bizarre, that have driven parents to disinherit their children.  As we have touched on in other blogs, the law in BC requires that a will discharge the will-maker’s moral duty to make adequate provision for their spouse and their children.  This law is the most generous in Canada in this regard.  To overcome this moral duty and disinherit a spouse or a child in a way that the courts won’t interfere with, the will maker needs to have both valid and rational reasons.  This means the reasons have to be both true and logically connected to the disinheritance.

    Untrue reasons may be challenged

    Untrue reasons stated for disinheritance tend to have common themes that return again and again, such as imagined drug addictions or criminal histories, a parent’s mistaken belief that a child is very wealthy, or even conspiracies to steal the will-maker’s possessions.  Less common however, are the cases where the will-maker said their estate needed to be left to other needy relatives who turned out to simply not exist, or where the testator believed people had conspired to pump poison gas into his apartment.

    Irrational reasons may be challenged

    Beyond being true or not, the reason also has to be rational.  The mother whose son grew marijuana on her property leading to her arrest and conviction for drug possession was found to have had rational reasons for leaving him out of her estate.  On the other hand, the mother who disinherited her son because he failed to fix the fridge in her apartment was not held to have rational reasons for excluding her son out of the estate.

    Disinheritance for reasons inconsistent with Canadian social values may be challenged

    There are also reasons for disinheriting a family member that may be both true and have a rational connection to disinheritance that have been found to be simply inconsistent with modern Canadian social values.  The courts, for example, will clearly not uphold the wills of parents who disinherit their children for their sexual orientation.  There are also some cultural norms that will not be upheld either, such as the custom of providing only for sons to the exclusion of daughters.  Lastly, a child who marries someone of a different race, or religion, or nationality can still expect to share in their parent’s estate.

    We know that the issue of testamentary freedom always gets our viewers thinking, so I’d invite you to share your thoughts or your own stories of strange disinheritance with us.

    I hope you have learned something about estate law in BC from this blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.

    Andrew Broadley is an associate lawyer at League and Williams who practices in the areas of estate litigation and personal injury.  If you have an estate dispute you would like to discuss, we offer free consultations and may be contacted through our offices at 250-888-0002 or via email at info@leaguelaw.com.

  • Undue influence: When will-makers are persuaded to disinherit

    Undue influence: When will-makers are persuaded to disinherit


    Undue influence: grounds for an estate dispute

    One of the reasons people challenge or dispute a will in British Columbia, is that the will was either prepared or signed as a result of unreasonable interference, or undue influence, by another person.   For example, the son of a testator might have pressured his parent to give him a larger portion of the family wealth because the son is the oldest child, or because his siblings are less liked or less successful than the son.  The son might use psychological, financial, or even physical pressure to influence the decision of their parent in writing their will.  In estate law, this is called undue influence.  If a court finds the will maker was under undue influence when the will was prepared or signed, the court can cancel or reduce the gift to the person who applied the undue influence.

    Making the case: what needs to be proven?

    Undue influence will not be found simply because someone persuaded the will-maker or testator to make a change to their will that benefits the person who persuaded the testator.  Good or bad, when a person asserts that a will is invalid, because the will maker was under undue influence, they have to prove several things.  The influence must be sufficient that the testator’s judgment or wishes were overpowered.  Undue influence has been described as:

    an influence causing the execution of a will which pretends to express the will-maker’s mind, but in reality does not, and expresses something else which he or she did not really mean.

    Therefore, mere persuasion or advice from an interested person will not suffice in proving undue influence.  The heavy burden of proving that force and coercion destroyed the will-maker’s free will lies with the person who is disputing or challenging the will.

    However, the burden of proof shifts if it can be shown that there was a special relationship between the will-maker and another person who substantially benefits from a will.  This is called the presumption of undue influence.  This type of special relationship arises where: the person was in a position where there was potential for dependence or domination of the will maker.

    This presumption can arise in a large variety of situations.  A common example is where the will maker is a parent who is dependent on one of their children for their day-to-day care.  Once this special relationship is established, it is the person who benefited from the will that has to prove the gift was not made out of undue influence.  If he or she cannot do this, the court can cancel or reduce the gift, or even set the entire will aside.

    I hope you have learned something about BC estate law from this blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.

    Matthew Melnyk is a lawyer practicing with League and Williams in our Victoria, BC offices.  He focuses his estate dispute practice on helping those who have been wrongfully disinherited to successfully challenge unfair wills and estates to ensure his clients get what they are rightfully entitled to under BC law.  If you have an estate dispute issue, contact League and Williams for a free consultation at 250-888-0002 or via email at info@leaguelaw.com. 

  • Can adopted children dispute their former parent’s estate?

    Can adopted children dispute their former parent’s estate?

    BC’s laws are favorable to those who dispute wills & estates

    Right or wrong, BC remains the most favorable province in all of Canada for those who wish to challenge the fairness of the last will and testament of another via an estate dispute. In previous blogs, we described how BC law allows spouses and children of a deceased to challenge the will if the will does not make “adequate, just and equitable” provision for the support and maintenance of them, even if that spouse or child is financially independent.

    Many people disagree with this law, saying a will-maker should have sole and overriding discretion over what to do with their estate, but Canada’s highest court has found BC’s law to be fair. Indeed, if you had been treated unfairly because of your sexual orientation, your gender identity, mental illness, your choice of spouse, or some of the other reasons we see testators cut people out of their will, you might agree the law is fair as well.

    There are, however, limits to the law’s ability to change someone’s will, and last week, the BC Supreme Court clarified one of these limits. This clarification relates to whether a child that has been adopted out by a biological parent, can challenge their biological parent’s will.

    Adoption changes the right to dispute an estate in BC

    In this recent case, the executor of the will, that is the person identified in the will to administer the wishes of the will writer, who is called the testator, applied to the court for an order that a child of the testator, who had been adopted by other parents, did not have standing to challenge the will of their birth parent. The court noted that the BC Adoption Act provides that when an adoption order is made, “the child becomes the child of the adoptive parent”, “the adoptive parent becomes the parent of the child”, and the pre-adoptive parent is no longer a legal parent.

    This means the adopted child is no longer a child that can challenge their biological parent’s will.

    This make sense because in many adoption situations, once the adoption occurs, or even before the adoption occurs, the adopted child maintains no contact at all with their biological parent. However, there are many cases where a child who is adopted out, particularly when adopted as an infant, re-establishes contact with their biological parent and goes on to have a full, and sometimes financially dependent relationship, with that biological parent.

    In those cases, this recent court case would say the adopted child has no claim against the estate of their biological parent, no matter the degree of their relationship or financial dependence.

    I hope you have learned something about the law from this blog. Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law. If you have a legal issue with which we may be of assistance, do not hesitate to contact our office via phone at 250-888-0002 or via email at info@leaguelaw.com.