League and Williams Lawyers

Tag: Estate Dispute

  • 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.

  • Self-Representation in Estate Litigation: Is a Lawyer Required?

    Self-Representation in Estate Litigation: Is a Lawyer Required?

    People involved in small-scale estate litigation cases often question if they can represent themselves to save on legal costs. In short, yes, the law in BC allows people to self-represent. However, those who choose to do so may find themselves at a significant disadvantage.

    What to Expect

    The recent estate case of Sull v. Pengelly (2019) featured a self-represented litigant. The courts specified exactly the obligations that a self-represented litigant must adhere to:

    1. Familiarize themselves with the relevant legal practices and procedures that pertain to their case;
    2. Prepare their own case; and
    3. Be respectful of the court process and the officials within it.

    Essentially, the court holds a self-representing litigant to the same standards as a lawyer, and they must prepare well to avoid undue delays in court proceedings. Further, the courts do not have any special treatment for self-represented litigants. In the case, the Court stated, “the mere fact a party is self-represented is not a basis on which to depart broadly from the rules that govern litigation, for the administration of justice is not well served by an imbalance in the latitude afforded litigants.” In sum, the court treats a self-represented litigant as a trained lawyer, expecting them to act and prepare for the court hearing as a lawyer would, which puts them at a disadvantage due to their legal inexperience and lack of formal legal training.

    When is Self-Representation a Good Idea?

    According to the Law Times, 98% of self-represented litigants lose their case.

    Being a self-represented litigant almost always poses a significant disadvantage when the case is against someone who has formal legal representation. Self-represented litigants lack the experience to present the necessary information to the Court, struggle to find the resources for researching relevant legal issues, and are unfamiliar with the legal procedures involved in an estate dispute claim.

    While self-representation may save money in legal fees, it comes at the cost a significant amount of time to research the relevant legal issues and to prepare the case. Further, self-represented litigants have a heightened chance of losing their case with an estimated 98% of self-represented litigants failing to win their case. People should approach representing themselves in an estate dispute with a high amount of caution as the lack of legal training and experience can mean failing to get the desired result from the claim.

    Other Options Available

    In some cases, lawyers will offer to work on your case on a contingency basis. The lawyer receives payment only if they win the case, sometimes earning a percentage of the winnings. If they lose the case, they charge the client only for their out-of-pocket expenses, known as disbursements, incurred while pursuing the case. If cost is the main determinant to choosing to self-represent, a contingency fee agreement with a lawyer can be a great option to consider. It’s important to note however, that contingency fees are typically higher than regular lawyer fees because of the risk of loss on the part of the lawyer.

    Other Limited Legal Services

    There are also other approaches that one can take when it comes to estate dispute litigation that fall somewhere between complete self-representation and full lawyer representation. A limited scope retainer or unbundled legal services is one option. In a limited scope retainer, the litigant engages a lawyer for case preparation assistance, receiving advice on the necessary documents and the evidence to present before the courts. The litigant then represents themselves before the courts with the information imparted to them by a lawyer. This way, self-represented litigants can be sure that they are following proper legal procedures while they have the autonomy to present the case before the courts as they wish.

    In the end, even though complete self-representation can save legal expenses-if they win the case– it ultimately puts litigants at a considerable disadvantage, particularly when their opponents have retained counsel. Lawyers will always strive to represent their clients to the best of their abilities, ensuring the best possible outcome. If a person is considering self-representing, pursuing a limited scope retainer or full lawyer representation, consultation an experienced estate lawyer can be helpful in making the right choice.

    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.

  • Residency, Domicile & Estate Law

    Residency, Domicile & Estate Law

    People are increasingly mobile – many are born in one country, go to school in another, and retire abroad. After living in a number of different countries, legally, where is home? While the answer might seem obvious to you, this question can have huge implications when it comes to estate law. The place of one’s permanent home in legal terms is called their domicile. This determines which country or province’s laws will apply to your estate when you pass away. Whether you know where it is or not, everyone has a domicile, and only one domicile.

    A person’s domicile is not always simply the place where they were born or the place where they currently live. Someone might have been born in one country, but lived somewhere else for their entire life. On the other hand, someone might move to a different country for school, with no intentions of staying there. Because of this, courts must consider various factors to determine a person’s domicile. A recent case in BC questioned a deceased’s domicile, asking the courts to determine where his domicile really was.

    What Your Domicile Means For Your Estate

    You are never domiciled to Canada per se; rather you are domiciled to an individual province because each has different laws.

    The case of Sato v. Sato (2018) highlighted the impacts that a domicile has on an estate law case. Sato was born in Japan and lived in Toronto, Vancouver, the Cayman Islands, Guernsey and Luxembourg throughout his lifetime. He typically returned to BC every couple of years while he was living abroad.

    In 2009, he settled down and moved to Luxembourg which is where he lived when he eventually died in 2015. Shortly after he moved, in 2011, he visited BC where he then wrote his final will. Later, in 2013, while living in Luxembourg, Sato got married. This was where the controversy arose, as the courts looked to determine where he was domiciled at the time of the marriage. Since this was before the Wills, Estates and Succession Act was enacted, if Sato was domiciled in BC, the marriage would revoke his will. If he was domiciled in Luxembourg, his will would not be revoked.

    How Domicile is Determined

    The courts in Sato v. Sato (2018) used two factors when determining someone’s domicile:

    1. Where the individual resided at the time of death; and
    2. The intention to make the place of residence a permanent home, indefinitely.

    Since Sato lived, worked and filed taxes in Luxembourg, it was clear to both parties of the case that he was a resident of Luxembourg. Commonly, as was the case here, it was the second point of the criteria that was in dispute. The courts questioned whether “the intention of permanently settling there … in the sense of making that place [one’s] principal residence indefinitely” was apparent for Sato and his home in Luxembourg. It was shown from past records that Sato actually had an intention of retiring in Canada. Because there was no evidence to the contrary, it was decided that even though he resided in Luxembourg, he had no intention of having a permanent home there. It was ruled that Sato’s domicile was in BC and as a result his will was revoked because of his marriage in 2013.

    No Intentions of Permanent Residency

    Sometimes, it’s impossible to determine whether an intention to make somewhere an indefinite, permanent home is evident. When this is the case, the courts will use the domicile of origin, in other words where the person was born. A recent case in Saskatchewan, Vanston v. Scott (2014), featured a son challenging a father’s will, with the son claiming that father was actually domiciled in BC. The defendant argued that the deceased was rightfully domiciled in Saskatchewan. In the end, the plaintiff could not show the deceased had the intention of returning to BC, to it his eventual permanent home and the defendant was unable to show that the deceased had not abandoned Saskatchewan as his permanent home. The courts used the domicile of origin to determine the correct jurisdiction of his estate which was neither Saskatchewan nor BC, but rather his birth province of Alberta.

    The location of someone’s domicile can be confusing as it can change often throughout their lives. If you’re unsure where your domicile would be and want to make your intentions of permanent residency clear, contact an experienced estate lawyer today as it can have significant impacts on the administration of your will.

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

  • When a deceased’s assets go missing: what can be done?

    When a deceased’s assets go missing: what can be done?

    The executor of an estate has several responsibilities. These include accounting for all assets, debts, and funds entering or leaving the estate. When the executor is ready to distribute the estate to the beneficiaries, they are required under BC’s Trustee Act to provide a comprehensive account of everything that went into and out of the estate during administration. This account information must include:

    1. What the original estate was;
    2. All the assets received by the estate; and
    3. All the assets remaining to be distributed.

    Beneficiaries are entitled to this information and have a legal right to request this information at any time during the estate administration process.

    Assets Missing from the Estate

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

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

    Passing of Accounts – Proving the Account’s Accuracy

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

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

    Tracing the Missing Asset

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

    Reminders for Beneficiaries

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

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

  • 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.

  • 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.

  • 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.

  • Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Bargaining for Elder Care – the Promise Made

    There were three adult children, Gloria, Max and Nate – each of whom had been promised a third of their parent’s estate including the family home by their father.  As is common, when their father died, everything was left to their mother.  As time went on, the mother was eventually unable to care for herself at home.  Wanting to keep their mother in her home, Gloria, unwilling or unable to care for their mother herself, made a deal with her brother, Max: if he moved back to Victoria, BC, Canada from England to care for their aging mother until her death, that she would agree to sell to him her expected one third interest in the family home, a home that had been built by their father some 60 years earlier.  The home having special meaning to Max, Max packed up his life and made the move, caring for their mother until her death three years later in 2010.

    Deception, Death & Disinheritance – a Recipe for an Estate Dispute

    Gloria held sway with their mother – so much so, that upon their mother’s death, Gloria revealed that their mother had transferred all of her assets to a trust of which Gloria was the only beneficiary.  Gloria’s actions resulted in the entire disinheritance of both brothers, betrayed by a sister who used her influence over their mother to exclude them from the estate. To make matters worse, Gloria then proceeded to refuse to sell to Max the interest in the family home, breaking the pledge she had made to him.

    Dismayed, Max sought to right the wrong that had been done and disputed the estate – suing not only for his fair share of the estate from the disinheritance but, also to hold his sister to the promise she had made to sell Max a one third of interest in the family home.

    Uncertain Certainties and the Law – Promises and Probabilities

    The disinheritance went to trial and the trial judge found Max’s sister had exerted undue influence over her mother in causing the mother to put all of her assets in her daughter’s name.  As a result, the judge ordered all of the assets back into the mother’s estate, and divided the estate equally into thirds.  Importantly, the trial judge also found that Max’s sister had to make good on her promise to sell her one-third interest to Max, because although the sister did not own the interest in the home when she made the promise, it was reasonable for Max to expect that Gloria would after their mother died. 

    In holding Max’s sister to her promise, the trial judge found the key components of “proprietary estoppel” were met:  there was a promise by the sister, that Max reasonably relied on, that was unfairly broken and caused Max detriment.  However, Max’s sister appealed to the BC Court of Appeal, and two of three judges found that Max’s sister could not be held to her promise because she didn’t own the one-third interest in the home at the time she made the promise, and it was not “certain” that she ever would.

    Is it reasonable to require certainty when making a promise about something that a person does not own at the time the promise is made (but is likely, but not certain, to own in the future)?  Are contingent promises valid – or are those who rely on them without recourse if the promise maker reneged?  These questions merited an appeal to the Supreme Court of Canada, which heard the case on May 26, 2017.  

    The Argument Before the Supreme Court of Canada

    League and Williams’, Darren Williams appeared before the 9 judges of the Supreme Court of Canada to argue the case on Max’s behalf.  Mr. Williams argued that the BC Court of Appeal was wrong in insisting there be absolute certainty in the sister’s ability to make good on the promise.  What followed was a lively debate with the 9 justices on the level of probability needed in order for a person to be held to the promise that was made.  Does the outcome of the promise have to be as certain as death or taxes?  Or is reasonable probability enough?  

    The decision of the Supreme Court of Canada is expected in the fall of 2017.  Those who are making contingent promises and those who are relying on those same promises should look forward to the clarity this case may bring to this area of law in Canada.  This blog will be updated once the decision is issued.   

    Have an estate dispute?  The lawyers at League and Williams are here to help and will fight for your fair share of an estate.  We serve clients across British Columbia, offer free consultations and do not get paid until you do.  We may be contacted at 250-888-0002 or via email at info@leaguelaw.com. If you have suffered an unfair disinheritance, do not delay, it could cost you your fair share of an estate. 

  • 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.