League and Williams Lawyers

Category: Wills and Estates

  • Notice of Dispute: Preparing to Challenge a Will

    Notice of Dispute: Preparing to Challenge a Will

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

    Who Can Issue a Notice of Dispute?

    Rule 25-10 in the Supreme Court Civil Rules specifies the laws surrounding notices of dispute in BC. Essentially, anyone who has an interest in the estate is able to file a notice of dispute. More specifically, the people who can issue one are:

    • Any executors or alternate executors of the will,
    • Any beneficiaries of the will, and
    • Anyone who would have been an intestate successor, assuming a will was not written and the estate was larger than what the spouse would inherit solely.

    Depending on the family structure of the will-writer, intestate successors for each estate can vary. For more information, read our blog on how assets are distributed in intestacy.

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

    Valid Reason for Issuing a Notice

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

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

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

    Removing a Notice

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

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

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

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

  • Unjust Enrichment Claims by Family Caregivers

    Unjust Enrichment Claims by Family Caregivers

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

    Legal Process for Unjust Enrichment Claims

    To claim for unjust enrichment, the claimant must be able to successfully prove that:

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

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

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

    Legal Remedy Available from an Unjust Enrichment Claim

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

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

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

    Family Caregivers & Successful Unjust Enrichment Claims

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

    Some common examples of instances when BC courts have ruled in favour of unjust enrichment in family caregiver cases are:

    • Children who reduce working hours, sacrificing his/her career to take care of their parents,
    • People maintaining the elderly’s property through housework, yardwork, renovations, etc.,
    • People maintaining the elderly’s financial payments – living, medical and/or rent payments, or,
    • People providing emotional/physical support on a regular basis, for an extended period of time.

    Challenges in Proving an Unjust Enrichment Claim

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

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

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

  • Whiting-Out or Erasing Part of a Will: Valid Modification?

    Whiting-Out or Erasing Part of a Will: Valid Modification?

    After a testator has finished writing their will, they may want to make a modification at a later date. There are specific procedures that will-writers must follow for any revision in a will to be legally valid. While it can be clear what the testator had intended by their revision, unofficial changes to the document can result in a lengthy court process to cure the will to make the change legally valid.

    Valid Will Alterations in BC

    Section 54 of the Wills, Estates and Succession Act (WESA) identifies the circumstances in which modifications to a will are valid. The criteria for a valid modification is the same criteria for the initial creation of a valid will. In order for a will’s modifications to be legally valid in BC, it must:

    1. Be in writing;
    2. Be signed by the testator, and;
    3. Be properly witnessed and signed by the witnesses (two or more people).

    Sometimes, it’s unreasonable to expect the above steps for a simple revision. S.54 of the WESA further explains these requirements can be set aside when:

    1. The alteration is not substantive;
    2. The alteration is to adjust form, style, or a typographical error;
    3. The alteration is made effective by an order pursuant to the courts curing the will.

    To explain part 3, the Courts can rectify an error in a will to ensure the will reflects the testator’s intentions and is valid. This happens when the will-writer had a clear intent to modify the will, but did not make a valid modification or made a mistake. The courts can rectify an error when it’s clear that the testator made a mistake.

    Using White-Out to Modify a Will

    Eraser marks and white-out could be used to validly modify a will.

    Levesque Estate (Re) (2019) asked whether a will in BC could be validly modified using White-Out, a white-coloured liquid used to cover ink on paper. The will-writer originally wrote in her will to equally split her estate amongst her children and eldest grandchild. After her death, beneficiaries discovered that the provision giving a share of the estate to the grandchild was covered with White-Out.

    The Court’s Decision

    Unfortunately, in this case there were no witnesses or signatures to verify the modifications. Since this is not a valid modification, the Courts looked into whether the requirements could be avoided. The alteration was substantial and the original was not completely illegible – when held under light, one could easily read what was under the white-out. The only way this alteration could be valid was if the Courts cured the will to rectify the error. The Courts ruled that the intention of the will-writer was to remove the grandchild from the will. The lack of proper procedures in making the change was not sufficient to prevent her intentions from being followed. The grandchild was legally removed as a beneficiary of the will. Because the claim arose from the actions of the will-writer, the estate paid for the associated legal costs.

    If you want to make a modification to your will, it’s important to follow the proper procedures in doing so. There must be two witnesses of your signature. Failing to follow the adequate procedures will likely result in Court proceedings, like in the example above. While the will-writer’s intentions were followed, the trial costed significant time and money for the estate and beneficiaries. Further, a will-writer cannot be certain that the Courts will uphold a change. It’s not always possible to establish that the will-writer made the change.

    If you want to make a revision to your will, contact an experienced estate lawyer today. We’ll ensure your will is modified validly.

    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.

  • Survivorship Period: The Five-Day Survival Rule

    Survivorship Period: The Five-Day Survival Rule

    Will writers can specify a survivorship period where the beneficiary must survive the will-writer beyond a specified period, or else their gift will be lapsed and given to someone else. Essentially, a survivorship period gives the will-writer more power over how their estate is to be distributed. When a survivorship period is not specified in the will, there is a five-day survival rule by law in BC.

    Five-Day Survival Rule

    The survivorship period should consider the anticipated survival time of the beneficiaries and the overall time to administer the estate.

    Under section 10 of the Wills, Estates and Succession Act, in order to receive an inheritance, the beneficiary must survive the deceased by five-days or longer. If a beneficiary dies within five-days of the will-writer’s death, they are deemed to have died before the will-writer for all estate purposes. Will-writers cannot shorten the survivorship period; however, they are able to extend it. It’s common for will writers to extend the survivorship period to 30 days.

    If a joint asset is held between two people, each dying within five-days of each other, the asset is given one half to each joint owner. As an example, Jack and Jill jointly own a house together. Jack passes away on May 22nd, 2020 and Jill passes away on May 25th, 2020. Under the five-day survival rule, Jill would not be entitled to anything in Jack’s will and his estate would be distributed as if Jill deceased before him. However, since it’s a jointly owned property, Jack and Jill would each receive 50% of the property’s value, to be distributed according to each of their wills.

    Benefits of a Survivorship Period

    While it’s clear what the survivorship period and five-day survival rule do, it’s not always clear what their purpose is. In some cases, it can be difficult or even impossible to determine who dies first. In a fatal car crash for example, it’s impossible to know whether one passenger briefly survived the other. It’s unreasonable for the courts to guess and have one person receive an inheritance, while the other wouldn’t.

    If you’re unsure how long a survivorship period to include in your will, contact an experienced lawyer today. We can ensure that your estate is distributed according to your wishes.

    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: Suing on Promises Broken Under Mutual Wills

    Stepchildren Challenging a Will: Suing on Promises Broken Under Mutual Wills

    In BC, courts can rule a will unfair and vary it if it doesn’t make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. This ensures that individuals can’t disinherit spouses and children 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. WESA does not consider a stepchild as a child unless the stepparent legally adopts them.

    Stepchildren can’t vary a stepparent’s will under WESA. However, there are ways that stepchildren can challenge a will. These scenarios can arise if:

    Suing on Promises Broken Under Mutual Wills

    Spouses create a mutual will to grant the surviving spouse the majority or entirety of their estate. After both spouses pass away, the estate divides among their beneficiaries based on the will’s terms. When stepchildren are part of the equation (from past or future relationships after a spouse’s passing), creating a mutual will becomes crucial. The primary purpose is to provide for a spouse while ensuring fair distribution of the estate to their own children in the future. If one of the spouses in a mutual will agreement passes away, the surviving spouse can’t alter the will. This prevents stepchildren from being unfairly disinherited if their birthparent dies before their step-parent.

    An Example From Case Law

    Unfairly disinherited stepchildren cannot directly file a wills variation claim against their stepparent’s will.

    A case in White Rock, BC, Wright Estate (Re) 2012, highlights the ability of the courts to give stepchildren the proper inheritance when there is a promise broken under a mutual will. A married couple, both of whom had children from a past marriage, wrote a mutual will together. Neither of them chose to adopt the other’s children. The husband, who was significantly wealthier than his wife, specified that he would provide for his wife for the entirety of her life, give a small portion of the estate to her children, and give the remainder of his estate to his own children. The intention being that his children would be receiving a large majority of his estate.

    When the husband passed away, his spouse changed the will, electing to give the estate to her children, and nothing to her stepchildren. This directly contradicted the mutual will that they agreed to while he was alive. The stepchildren sued her for the promise broken under their mutual will. At the end of the summary trial, the judge ruled that this was a broken promise, and the challenge was successful. The children were entitled to the share of the estate that their father had intended.

    Reminders for Will Writers

    This case makes it clear that stepchildren can successfully challenge a will in BC in some circumstances. When a stepchild’s biological parent creates a mutual will, their parent’s requests and intentions will be respected. If you are a stepchild and you believe a promise was broken under a mutual will, contact an experienced estate lawyer today.

    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.

  • Subpoenas for Testamentary Documents: Getting a Copy of the Will when the Executor Refuses

    Subpoenas for Testamentary Documents: Getting a Copy of the Will when the Executor Refuses

    Beneficiaries, spouses and children have the right to receive a copy of a testator’s will, regardless of the executor’s opinion. When executors refuse to provide a copy of the will, beneficiaries can issue a subpoena. According to part 25 of the Supreme Court Civil Rules,

    “A person may apply for a subpoena to be issued to require a person to deliver to the registry one or more of a testamentary document, an authorization to obtain estate information, an authorization to obtain resealing information, an estate grant, a foreign grant, a resealed foreign grant and a certified or notarial copy of such a document.”

    To use a subpoena to request a copy of a document, you must have a valid reason.

    The Subpoena Process

    To clearly illustrate the process, let’s look at an example. A woman, Ann, is one of the beneficiaries of a will. Todd is the executor. Todd is in possession of the testator’s final will.

    a)      Failure to Deliver a Copy of the Will

    A subpoena gives the executor a deadline of 14 days to provide a copy of the will to the courts.

    Ann needs a copy of the will to see how her inheritance will impact a certain tax benefit. Since she is a beneficiary of the will, she requests that Todd provide her with a copy. After multiple direct requests to Todd for a copy of the will, he fails to deliver one to her. There could be many reasons that Todd is choosing to do this. However, these reasons don’t legally justify his refusal to provide a copy of the will. Ann decides to issue a subpoena to the courts to enforce Todd to act on his responsibility as the executor.

    b)      Issuing a Subpoena

    The person who requests access to the document needs a valid reason, and the person who receives the subpoena must have previously refused to provide that document. Applying this to the example above, once the courts issue Ann’s subpoena, she serves Todd with the documents directly and in-person.

    Todd has three options after receiving the subpoena:

    1. Comply with Ann’s request by giving the courts a copy of the will;
    2. Explain in front of the courts how he is not in possession of the will anymore; or,
    3. Challenge the subpoena claiming that it’s unnecessary to comply with it.

    c)      Enforcing the Subpoena

    If Todd has not done anything after 14 days, Ann can involve the police to enforce the subpoena. Ann must provide proof that the subpoena was served, proof that she requires a copy of the will, and a copy of the court’s subpoena issuance. Now, Todd can be apprehended and brought before the courts where he could be detained in custody. Todd can also be ordered to pay any costs that arose to Ann because she was not given a copy of the will upon her valid request.

    If you’re a beneficiary who is not receiving a copy of the will after multiple requests, 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.

  • Citation: Forcing the Executor to Apply for Probate

    Citation: Forcing the Executor to Apply for Probate

    For beneficiaries, it can be frustrating to wait for the executor to apply for a grant of probate. Unfortunately, some executors deliberately delay the administration process or completely fail to take action. Regardless of how slow the executor is, beneficiaries can feel helpless in their ability to speed up the process. Family politics, legitimate delays, or suspicious and fraudulent behaviour can delay administration. Beneficiaries suffer because of executors who act slowly. Assets can change in value over time and the cost of maintenance on those assets can accumulate.

    When executors completely fail to apply for probate, beneficiaries can take legal action to advance the estate administration. Beneficiaries and interested parties can file a citation, compelling the executor to act.

    Filing a Citation

    Beneficiaries are not the only people who can file a citation, any interested party can.

    A citation forces an executor to either act, or risk facing removal as the executor of the will. The courts will appoint a new executor if they remove the current executor. The new executor can then apply for a grant of probate themselves.

    To issue a citation in relation to the probate of a testamentary document, the citor must have an interest in the estate, and knowledge or belief that a testamentary document exists and is in the possession of the executor. Citations must be directly served to the executor in-person. Once served, the executor has 14 days to take action. A person who receives a citation to apply for probate can:

    1. Apply for a grant of probate,
    2. Provide a valid explanation of why they haven’t filed yet, or
    3. Renounce their executorship.

    After Receiving the Citation

    After receiving a citation, an executor will have 14 days to take action. This does not mean that they must immediately apply for a grant of probate upon receiving a citation. However, they must take action in some way to progress the administration of the estate. If the citation compels the executor to provide a copy of the testamentary documents, they must comply within 14 days. When the citation concerns the status of probate, the executor must take action of some form within 14 days. However, the time restriction is 6 months after the day of the citation being served.

    If probate has already been applied for but has not been granted by the courts yet, the executor is simply required to provide documentation to the citor, demonstrating that probate has been applied for and they can take no further action until it is granted. This is an action that the executor would have to perform within 14 days of being cited. However, if they have not applied for probate, they must do so in a timely manner so that it will be granted within 6 months from the date of receiving the citation.

    If after 6 months no probate has been granted, the executor can be removed. The time frame of 6 months can seem like a long time, however, probate can be a lengthy process. If there are any applications to challenge the will during this process, the length of time given to the executor is likely to be extended.

    Failure to Answer the Citation

    If the executor does not answer the citation, either refusing to issue a grant of probate or not providing explanation as to why probate has not been granted, they can be removed as executor. Once the executor is removed, the person issuing the citation has options available to proceed with the estate administration process.

    According to section 25 of the Supreme Court Civil Rules, once the executor has been removed, the person who issued the citation can apply for:

    1. A grant of probate or a grant of administration with will annexed in relation to the testamentary document or another testamentary document;
    2. An order under section 58 of the Wills, Estates and Succession Act curing any deficiencies in the testamentary document;
    3. An order that the testamentary document is a will proved in solemn form; or,
    4. If the testamentary document is in the possession of a cited person, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document.

    Reminders for Beneficiaries

    Since executor removal directly conflicts the will-writer’s wishes, it can be a difficult process to find a replacement to take over executorship of the estate. It’s not as simple as appointing the person who filed the citation the executor. The will may need to be cured and modified to enact a new executor or the will may need to be proven in solemn form. The will is required for probate to be granted, so, in some cases it may be necessary to subpoena the original executor to provide estate administrators with the will.

    If you’re a beneficiary who is suffering because of a slow executor, contact an experienced estate lawyer today to begin solving the problem.

    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.

  • Invalid Wills and Suspicious Circumstances: Undue Influence

    Invalid Wills and Suspicious Circumstances: Undue Influence

    Wills in BC can be ruled invalid if a claimant can prove the testator was under undue influence. Undue influence is 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.

    What is Considered Undue Influence?

    It’s difficult to prove undue influence in BC. To satisfy the criteria of undue influence, the influence must be so significant that the testator’s wishes were completely overpowered. Suggestions, persuasion and advice are all allowed in BC and are not considered forms of undue influence. A successful claim needs to have proven coercion that prevented the will-writer from exercising their free will. This can be in the form of psychological, financial and physical pressure – it is not limited to threats or terrorization. Even when undue influence has occurred, it can be difficult to establish to the degree required by the courts. It can be difficult for the courts to distinguish between undue influence or simple persuasion, which is allowed in BC.

    The Burden of Proof

    The presumption of undue influence is not a provision in all of Canada. In Ontario for example, they do not have a doctrine similar to this.

    The burden of proof is on the claimant (the person challenging the will) to demonstrate the will-maker was unduly influenced. However, the burden of proof can shift to the defendant in certain instances. If the claimant can show that there was a special relationship established between the will-maker and the person whom the will-maker was dependent on, there is a presumption of undue influence. This means that the defendant now has the onus of proving that there was no undue influence. In order to establish this presumption under the structured approach applied by BC courts, the evidence provided must show that there existed a relationship of influence at the time of will-writing, and that some of the disposition outlined in the will requires explanation or does not seem characteristic of the will-writer’s wishes.

    For example, when the will-maker is a parent who is dependent on one of their children for their day-to-day care. The parent might choose to give a disproportionately large share of the estate to their care-taking child. Due to their relationship, the child must prove the gift wasn’t made under undue influence if a claim is raised. If they can’t do this, the court can cancel or reduce the gift, or even rule the will invalid.

    Examples of Undue Influence Claims in BC

    Some of the most common undue influence claims involve people who have entered an elderly person’s life very recently and been given a large portion of the estate. This can be suspicious, as people tend to give their estate to family longtime friends. Another frequent case is children who are relentless in having a parent give them a larger portion of the estate than their siblings. Parents are put in a position where they see no option other than to honour this child’s request, out of fear of ruining their relationship. This is recognized as a form of undue influence.

    The case of Tribe v Farrell (2003) demonstrates how undue influence can be proven solely through fear and psychological factors. An elderly man he feared his caregiver would leave him if he didn’t give her his house. In the end, he left more of the estate to the caregiver than his own son. Due to this special relationship, the caregiver had to prove she did not unduly influence him. Ultimately, she failed to illustrate to the court that she did not unduly influence the will-writer. It was held that the second draft of his will which listed her as a beneficiary was invalid.

    A Recent Example

    Undue influence can be exerted both physically and psychologically.

    In a recent BC Supreme Court case a woman wrote a new will while terminally ill in the hospital. The new will gave more of the estate to her common-law spouse and his grandchildren, reducing her godchildren’s share of the estate. The godchildren elected to file an undue influence claim.

    The lawyer who helped prepare the new will described her as being very confused about why the lawyer was visiting and what they were doing on the day the will was drafted. The lawyer explained that the woman could engage in conversation, had a clear memory of some things, but had trouble recalling the date and where she was. The woman also could not give the exact names of her godchildren. It was clear that the woman was not legally capable of creating a will at the time.

    The Opinion of the Court

    On the facts, it seemed that the woman was persuaded by her spouse to make these changes to her will. The godchildren couldn’t prove undue influence as there wasn’t evidence to indicating that the will didn’t express her wishes. There was no special relationship in this case, as the woman was not dependent on her spouse or his grandchildren. The circumstances did not adequately satisfy the criteria to establish a presumption of undue influence against her spouse or his grandchildren.

    The judge had to determine to what extent the woman’s mental state impacted her ability to write a valid will, and if she was unduly influenced by her spouse due to her mental incapacity. Even though the woman did not demonstrate mental clarity at the time the new will was written, the court held that, on the balance of probabilities, she truly intended to make these changes to her will. The case was dismissed as there was no direct evidence of undue influence.

    In only the most extreme and conclusive cases will a court revise- or vary– a person’s will. The process by which this type of claim is investigated and decided by the courts is designed to ensure that will-maker’s true intentions are respected after their death. If you think that someone you loved was under undue influence during their will making, 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.

  • Invalid Wills: Suspicious Circumstances and Why They are Important

    Invalid Wills: Suspicious Circumstances and Why They are Important

    In BC, interested parties can challenge a will if they believe it is invalid due to suspicious circumstances like undue influence or lack of capacity. The courts presume a will is valid if it meets the following requirements:

    • The will must be in writing;
    • The will must be signed at the end by the will-maker, and;
    • There must be two witnesses to the signing.

    The will-writer must have been aware and in approval of the will’s contents, and have had the testamentary capacity to create the will at the time of it’s writing. Testamentary capacity is a person’s legal and cognitive ability to write a valid will. The testator must understand the purpose of a will, decide how to distribute their assets, and be mentally capable of making free decisions. Sometimes, we may be uncertain if the will-writer had the mental capacity to create a will when they wrote it, especially if they were in a state of terminal illness.

    What are Suspicious Circumstances?

    Suspicious circumstances are important because they threaten the presumption the will is valid. The courts consider suspicious circumstances as situations that raise doubts about the will-writer’s mental capacity, approval of the will’s contents, and their freedom to sign the will without undue influence. Claimants can dispute the validity of a will due to suspicious circumstances, and the courts may invalidate that will. The fact that there were suspicious circumstances during the will-writing process is not enough to successfully challenge a will – the circumstance in question has to have impacted the will-writing process enough to establish that the will does not accurately express the wishes of the will-maker.

    The doctrine of suspicious circumstances in BC is meant to ensure that will-makers have acted freely and voluntarily in their will-making process, and to prevent the enforcement of legally invalid wills. When writing a will, the will-maker’s lawyer is responsible for determining whether the will-maker had the mental capacity to distribute their estate in their will. Because of this, in court, there is a presumption of testamentary capacity unless there is evidence to suggest otherwise.

    Why Suspicious Circumstances are Important

    Suspicious circumstances can pass the burden of proof to the defendant.

    The presumption a will is valid can be rebutted by the existence of suspicious circumstances. The burden is initially on the person raising the suspicious circumstances, however, if the challenger can establish that suspicious circumstances interfered with the making of the will on a balance of probabilities – a likelihood greater than 50% – the burden will shift to the person propounding the will (the person asserting it is valid) to prove that the suspicious circumstance do not invalidate the will. This can include proving the will-writer had testamentary capacity, the will-writer knew of and approved of the contents of the will, or that there was no interference through fraud or undue influence during the will-writing process.

    In short, the existing presumption of validity is rebutted when suspicious circumstances arise. The defendant, usually the executor of the will, rebuts the suspicious circumstances claim by proving the will’s validity. In some situations, this could mean the executor must prove the will in solemn form, which is a conclusive process in front of the courts which determines if the will is valid or not.

    When Circumstances are Ruled Suspicious

    As described in the Supreme Court of Canada’s judgment in Vout v. Hay (1995), suspicious circumstances can be raised by:

    1. Circumstances surrounding the preparation of the will,
    2. Circumstances tending to call into question the capacity of the testator, or
    3. Circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

    Some scenarios which can provide evidence of suspicious circumstances during the creation of a will include:

    • Mental or physical deterioration of the will-writer,
    • Sudden changes to a will near the end of the will-writer’s life,
    • Sudden changes to a will which appear inconsistent with how the will-writer used to behave,
    • Significant involvement from beneficiaries during the will-writing process,
    • Gifts given to people who may have influenced the will-writer or to people which do not have a long-standing close relationship with the will-writer,
    • Recent husband or wife inheriting a majority of the estate,
    • Episodes of depression, anxiety, or drug abuse, and/or;
    • Significant dependency on a person who becomes a beneficiary;
    • Serious illnesses at the time of the will-writing.

    This is a non-exhaustive list of suspicious circumstances that can arise during will-writing. Depending on the situation and the person, circumstances can seem suspicious nearly anywhere. It’s up to the appellant to show that a suspicious circumstance interfered with the will-writing process – making the will invalid. From there, the defendant must prove the validity of the will.

    If you were victim to unfair estate distribution and you think suspicious circumstances lead to the creation of an invalid will – 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.

  • Suspicious Circumstances in Will-Writing: Who has the Burden of Proof?

    Suspicious Circumstances in Will-Writing: Who has the Burden of Proof?

    When someone believes a will is invalid due to suspicious circumstances, they can challenge the will. The person challenging the will has the burden of proof- they must demonstrate that the will is invalid. If they can demonstrate that the circumstances interfered with the testator’s ability to understand and approve of their will, or their freedom to sign it, the courts can rule the will invalid. We refer to this as the doctrine of suspicious circumstances.

    The doctrine of suspicious circumstances ensures that testators have acted freely and voluntarily in their will-making process, and prevents the enforcement of invalid wills. If a will writer didn’t understand, approve of or freely choose to execute their will, it may not reflect their true testamentary wishes.

    How Does the Doctrine Work?

    The courts presume that duly executed wills are valid. According to section 37 of the Wills, Estates and Succession Act, a will must:

    • Be in writing;
    • Be signed at the end in the presence of two or more witnesses, and;
    • Be signed by two or more witnesses.

    Because the courts presume that a duly executed will is valid, the person challenging the will has the burden of proof to rebut the presumption. To challenge a will under the doctrine, an interested party must demonstrate on a balance of probabilities that the will is invalid. In practice, this means that they must provide evidence demonstrating at least a 51% likelihood that the will is invalid due to the circumstances. This could mean that they show the will in question wasn’t the final will of the deceased, provide evidence that the will writer didn’t have testamentary capacity when writing the will, or that they weren’t aware of the will’s contents.

    Reversing the Burden of Proof

    When a claimant establishes suspicious circumstances, the burden of proof shifts to the defendant.

    If the claimant is able to prove that suspicious circumstances impacted the validity of the will, they rebut the presumption. This means that the defendant will have to demonstrate the will is still valid despite the suspicious circumstances. They will have to show the court that the circumstances didn’t interfere with the will writer’s testamentary intentions. The defendant is usually the executor, who seeks to show that the will is valid in order to continue the administration process.

    In some situations, this could mean the executor must prove the will in solemn form, which is a conclusive process in front of the courts which determines if the will is valid or not.

    Proof in Solemn Form

    To provide a proof in solemn form, the court considers evidence concerning the circumstances of the will’s drafting and execution. During this process, the executor must prove that:

    • The will was duly executed;
    • The testator had testamentary capacity when they wrote the will;
    • The testator was knowledgable of the will’s contents; and
    • The testator approved of the will, not being under undue influence.

    Key Takeaways

    Ultimately, it is up to the claimant to demonstrate that suspicious circumstances interfered with the will writing process, invalidating the will. When a claimant successfully establishes suspicious circumstances, the defendant then has to show the will is still valid. If the courts determine that the suspicious circumstances lack significance or relevance, the claimant must present additional evidence. Otherwise, the courts will dismiss their claim.

    If you have been unfairly disinherited and believe suspicious circumstances impacted the testator, 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.