League and Williams Lawyers

Tag: inheritance

  • Unfair Wills: Who can challenge in BC? (Video Blog)

    Unfair Wills: Who can challenge in BC? (Video Blog)

    BC Laws are the Most Sympathetic to the Wrongly Disinherited 

    Many people do not know that BC’s laws are the most sympathetic laws in all of Canada to people who have been unfairly treated in a family member’s will.  Many provinces allow a testator to exercise almost complete discretion over how their estate is divided, even if it leaves their loved ones penniless.  BC’s highest court has said that a person’s will is their last opportunity to do right by their family members, and BC courts regularly vary unfair wills.

    BC’s Wills, Estates and Succession Act (WESA), provides that if a will-maker dies leaving a will that does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, then the court may change the will to make provision for the spouse or children that it thinks adequate and fair in the circumstances.  This can mean the significant rewriting of a will that is not possible in other provinces.

    Who Can Challenge a Will in BC?

    The obvious issue is, if a spouse or a child can apply to vary a will, who is a spouse and who is a child?  Under BC’s law, a spouse is one of two people who are either married to one another, or have lived in a marriage like relationship for at least two years. Of course, this includes same sex couples.  However, people cease being spouses when they separate.  This means separated spouses cannot challenge their former partner’s will.  Separation occurs when one spouse communicates they intend to separate permanently, or they taken action that demonstrates they intend to separate permanently.  This means that people may be legally separated even if they continue to live under the same roof.  Importantly, spouses are not considered to have separated if, within one year of their separation they begin to live together again, the primary purpose for doing so is to reconcile, and they continue to live together for one or more periods, totaling at least 90 days.

    On the other hand, a child, including an adult, and even a financially independent adult, can challenge their parent’s will, as well.  A child means a natural birth child, or a step-child that has been adopted by the step-parent.  Step-children who have not been adopted cannot challenge a will.

    Time is Limited to Challenge an Unfair Will

    One last important point to note is that if a spouse or child has not filed court documents to challenge the will within 180 days from date the court issues the grant of probate, the right to challenge the will is typically lost.  The grant of probate is the formal certificate given by a court that certifies that a will has been proven, validated and registered and which, from that point on, gives the executor the legal authority to execute the will.  Again, a will challenge must be filed within 180 of the court granting probate of an unfair will.

    We hope you have learned something from this week’s 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.  League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002.  If you are injured and would like a free consult, give us a call for a free consult.  We are here to help injured parties get the fair compensation that they are entitled to.

  • Reasons to dispute a will in British Columbia: four grounds to make a claim

    Reasons to dispute a will in British Columbia: four grounds to make a claim

    Every year in British Columbia slightly more than 30,000 people die, many of whom have some assets and debts (“an estate”) and a variety of personal and business affairs that they leave behind.  How the assets and debts are administered and how the proceeds of the estate are divided will depend on whether or not there was a will in place and whether or not the will conforms to the requirements of the law – more specifically the Wills, Estates and Succession Act (“WESA”) – which was recently updated with the new Act coming into force March 31, 2014.  If there is no will in place, the deceased is said to have died intestate and the estate is divided according to the provisions of the WESA that govern intestate estates.

    When a will is properly crafted and adheres to BC Law, the costs and time needed to administer the estate are minimized.  A well crafted will ensures that the final wishes of the deceased can be honoured, that all of the deceased’s business/personal affairs and possessions are accounted for and that all of those who are entitled to benefit from the estate are considered fairly and benefit accordingly.  Further, a will gives guardians of minor children a say in who becomes responsible for those children in the event of their passing.  While there are kits that may be used to craft a will, it is generally advised that people get the advice and guidance of a lawyer with experience in drafting wills to assist them in making a will that is considered legal and unlikely to result in a dispute.  If you need a referral to an appropriate lawyer to help you draft a will for your estate, we would be happy to assist, just contact us.

    Unfortunately, some British Columbians die without a will (intestate) or with a will that fails to conform to the WESA.  When there is no will, or when there are grounds to dispute a will, most beneficiaries need to talk to a lawyer who can advise them on their right to benefit from the estate and how to make a claim to get their fair share of the proceeds from the estate.

    Here are four reasons that often give a person grounds to dispute a will in British Columbia:

    1. Next-of-kin were left out of the will (either intentionally or unintentionally) – If a person who should be a next-of-kin beneficiary (generally spouses and children) of an estate is left out (either intentionally or unintentionally), those persons may have grounds to dispute the will.

    2. Similarly positioned beneficiaries of the will were given significantly different shares of the proceeds of the will – If a next-of-kin beneficiary was left a significantly different share of the estate, without good reasons, that person may have grounds to dispute the will.  For example, if one brother got 90 percent of the estate and the other brother was left with 10 percent of the estate for reasons that are either unclear and/or unfair, the disadvantaged brother may have grounds to dispute the will.

    3. Joint property was left to another beneficiary by the deceased – Joint home ownership or joint accounts automatically become the property of the surviving owners as they have a “right of survivorship”.  As such, joint property that is bequeathed in a will to another beneficiary gives the surviving joint property owner a ground to dispute the will.

    4. A will changes the beneficiary of a life insurance policy – Life insurance policies have their own designated beneficiaries and BC wills respect that.  If a person is aware that they are the designated beneficiary of the deceased’s life insurance policy, however a will that was made subsequent to the policy indicates a different recipient of the policy’s benefits, the designated beneficiary has a ground to dispute the will.

    It is important to note that a will is often just one part of an overall estate plan as there are other ways a person can transfer property in the wake of their death that falls outside of the purview of a will.  Prior to making any claims on an estate or disputing an existing will in British Columbia, it is best to consult a lawyer with expertise and experience in British Columbia estate law who can advise on whether or not you have grounds for making a claim under the specific circumstances faced and best enable a person to get their fair share of an estate.

    If a will doesn’t exist, the assets will be distributed according to the WESA.

    WESA has specific rules for dividing the property of a person who died without leaving a will.  If you find yourself eased out of the distribution when you should be part of it under the WESA, let an experienced lawyer help you make a claim.

    For more information on estate disputes, visit https://league.dojogakure.com/our-services/bc-estate-law/unfair-wills-and-estate-disputes/.

    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.

    Sources:

    BC Vital Statistics Agency

    Making a Will and Estate Planning, The Canadian Bar Association

    Wills, Estates and Succession Act

  • There’s a Will, but it Could be an Invalid Will

    There’s a Will, but it Could be an Invalid Will

    Being left out of the will of a close family member can be a shocking experience and may leave a person who was expecting an inheritance feeling betrayed.  Family relationships between beneficiaries of the will and those left disinherited can be incredibly strained.  Sometimes the revelations of a will come as a complete surprise and sometimes there are good reasons for the confusion and bewilderment – after all, just because a will exists, does not mean that it is valid or that it reflects the true wishes of the deceased.  What circumstances in British Columbia would make for an invalid will?  When should beneficiaries question the validity of a will and how can they contest it?

    In order for a will to be considered valid and binding, there are a number of factors that must be satisfied to meet the requirements of BC Estate Law and the Wills, Estates and Succession Act that came into effect March 31, 2014.  If these factors are not satisfied, the validity of the will may be contested in court, and there is a good chance the will would be declared an invalid will.

    Who Can Make a Will?

    Under British Columbia law, there are two factors that the person making the will (the testator) or having a will written on their behalf must meet in order for the will to be considered valid.  First, the testator must have been mentally competent during the time the will was made.  If a person is contesting the testator’s mental capacity at the time the will was written, that person will have to provide the court with medical evidence that supports the claim that the testator lacked mental capacity at the time that the will was made.

    Second, in British Columbia, the testator must be 16 years of age or older at the time the will was made.

    Who has to Witness a Will?

    If the testator is of sound mind and of legal age and makes a will, that will must be signed by the testator in the presence of two witnesses who must meet specific requirements.  The witnesses must sign the will as proof of their presences, and neither witness can be a beneficiary of the will, nor be a spouse of a named beneficiary of the will.  If a will is not appropriately witnessed, it may be declared invalid by the court.

    How does a person get a will declared invalid by the court?

    If a person has a legitimate reason to believe that the will that was left is invalid, it is important to seek legal advice.  A lawyer who is experienced in BC Estate Law can help identify legal problems with a will, effectively guide the client through the process of contesting the document in court and enable the client to get the share of the estate that they are entitled to. Contact us via phone at 250-888-0002 or via email at info@leaguelaw.com.