League and Williams Lawyers

Tag: probate

  • Probate vs. Letter of Administration: What’s the Difference?

    Probate vs. Letter of Administration: What’s the Difference?

    When someone dies, it often leaves their loved ones wondering about how they should start administering the estate. If the deceased leaves a will, the courts need to verify its validity. If the deceased didn’t write a will, the courts take on the responsibility of deciding a fair distribution of the estate and appointing an estate administrator. Ultimately, it can become confusing and stressful for those involved with handling a loved one’s estate. In this blog we’ll clarify the difference between processes of probate and letters of administration.

    Probate

    Probating a will ensures its authenticity, confirms it was left by the deceased, and validates the executor’s authority to manage the deceased person’s estate. The executor must apply to the court for a grant of probate, which can make probate a lengthy process. The court gives the grant of probate to the executor once they prove their legal authority over the estate. Probating a will aims to prevent the improper handling of large assets after the owner’s death.

    If the will-writer doesn’t own land, a large bank account, or a large investment account, their estate assets don’t meet the minimum value required for a grant of probate.As a general rule of thumb in British Columbia, if the total value of the estate named in a will is less than $25,000, the will won’t need to go through probate; however, there can be exceptions to this rule. The most common of which being instances where there are joint tenancy agreements over the assets in question.

    If the testator is in a joint tenancy agreement with someone, such as their spouse, the spouse will have full ownership of the asset upon the testator’s passing. This is also the case for any assets that have a designated beneficiary assigned to them; the beneficiary will gain authority of the asset upon the testator’s death. If the value of the estate is above $25,000, excluding any joint tenancy assets and assets with designated beneficiaries, the will must be granted probate.

    Letter of Administration

    When someone dies intestate, the letter of administration names an administrator, not an executor.

    If a person dies without leaving a valid will, the courts decide the distribution of the person’s estate. Since there is no will in such cases, it does not make sense to apply for probate as there is no valid will to test. Interested parties can apply for a letter of administration to receive executor-like duties as the estate administrator. In our estate blog on dying intestate – who becomes the executor (or administrator), we discussed the order of priority for multiple applicants.

    In some cases, a person leaves a valid will; however, it does not account for all of their assets. When this happens, the Court grants probate to the will and must also award a letter of administration to properly distribute the assets not named in the will. As an example, an elderly man names all of his assets in his will except for his savings account with $100,000 in it. Someone must obtain a letter of administration to distribute the savings account, and to distribute the remaining assets, the valid will needs a grant of probate.

    Probate Fees

    Whether the court grants probate or a letter of administration to the estate, it must pay approximately 1.4% of the total estate’s value plus a $200 court filing fee. However, if the value of the estate assets is under $25,000, these fees will be waived.

    In general, probating a will and receiving a letter of administration are similar processes, but have different purposes and applications in different circumstances. When an individual dies fully or partially intestate, the distribution of assets requires obtaining a letter of administration. In the case of a properly validated will, the executor typically needs to secure a grant of probate, eliminating the need for anyone to receive a letter of administration.

    If you’re unsure whether you need to receive a grant of probate or a letter of administration, contact an experienced estate lawyer today. We can help guide you through the probate process or through the process of receiving a letter of administration.

    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.

  • Benefits of Gifting your Estate Assets Before Death

    Benefits of Gifting your Estate Assets Before Death

    People often hold onto their assets until death, giving them to loved ones, friends, and charities through a will. Though will writers commonly retain possession of their assets until passing, they should consider gifting cash or other assets before death. This enables the gifted assets to avoid probate fees. In Canada, gifts are tax-free.

    Before gifting, create a detailed financial plan, outlining expected lifetime expenses. Prioritize personal needs and wants, as it is your estate and assets. Will writers should be careful to only gift assets that they will not want or need to support themselves in their lifetime. Gifting before death should only be used as a means of using excess estate assets, after you’re certain you can provide for yourself for the remainder of your life.

    Advantages of Gifting Before Death

    Ultimately, beneficiaries receive their inheritance, whether before or after your death. So, what’s the difference between beneficiaries receiving the funds before or after your death? There are many different benefits to gifting estate gifts before death. As mentioned above, the most important benefit to the majority of people is the reduction of probate fees.

    Saving Money

    Gifting is a popular method of maximizing an estate’s value. However, will writers need to be clear about their intentions when gifting assets.

    Gifting during one’s lifetime can result in significant savings in fees, which can be passed down to the beneficiary.

    Consider this example: A grandmother with $1,000,000 in cash assets anticipates spending only $100,000 for the remainder of her life. She gifts $900,000 to her beneficiaries and passes away the next day. Since BC probate fees are about 1.4% of an estate’s value, her estate would pay $1,400 in probate fees on the $100,000. The $900,000 gift incurs no probate fees or gift taxes. If she hadn’t gifted the money, the entire $1,000,000 would face probate, and the estate would pay approximately $14,000 in fees—an extra $12,600 cost.

    You Get to Watch Loved Ones Enjoy the Gift

    Some may find joy in watching family members use their inheritance. Monetary gifts can benefit young adults starting school, buying a home, or launching a business. The gift offsets costs, and the giver sees the positive impact on their loved ones’ lives. Further, gifting physical assets like land or high-value personal items can also have the effect of reducing probate fees and provide sentimental value for the gift giver.

    Aiding for Personal Reasons

    There can also be personal reasons that a will-writer might choose to give a gift before their death. In the case of a family emergency or unexpected circumstance, it can be extremely helpful to receive an inheritance as soon as possible. As a will-writer, you might recognize that you won’t necessarily need the excess money and it can make more sense in some scenarios to simply give a gift of cash, to help out. While it might seem unfair to do this, the other beneficiaries of your will can receive a higher percentage of the estate to make sure everyone is still receiving a fair share of the estate. There are various different work-arounds to ensure fairness amongst beneficiaries.

    In the end, whether you give gifts before your death or name the inheritance in your will, those you wish to benefit from estate do so. The difference is that gift giving before death can avoid additional probate fees and provide sentimental value to you and your loved ones. Before naming any gifts, you should always be certain that you will keep enough to provide for the remainder of your own life.

    Things to Consider Before Gifting

    Unfortunately, gifting is a common reason for litigation in estate law, so will writers must be careful and clear about their intentions when distributing assets during their lifetime. It is important that will writers considering gifting significant portions of their estate during their lifetime are clear on their intentions for the asset transfer. The transfer of gifts should be recorded in a way that will make it clear that you did not intend for the receiver of the gift to hold the asset on resulting trust in order to minimize the risk of estate litigation after your passing.

    If you need help estate planning, contact an experienced estate lawyer today. We will work with you closely to create the perfect estate plan for your situation, maximizing your estate’s value and convenience for your loved ones during an otherwise challenging period.

    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.

  • Strategies to Maximize Your Estate’s Value

    Strategies to Maximize Your Estate’s Value

    In BC, most will-writers should expect to have their will go through the probate process. This is a process where the courts verify that the will is real and legally valid. When a will goes through probate, the estate must pay approximately 1.4% of the entire estate’s value in probate fees. Many will writers want to minimize this fee to ensure the largest possible estate is left for loved ones. Unfortunately, avoiding probate isn’t an option as it is a requirement of most wills administered in BC. In general, if your estate has a value of more than $25,000, the will is required to go through probate. For full details on when probate is required, visit our page on estate administration.

    Even when probate is required, there are ways to minimize the amount that must be paid in probate fees, increasing value for your beneficiaries. One of the most common strategies is keeping assets away from the estate – any assets that are not part of the estate and will are not subject to probate fees.

    Giving Inter-Vivos Gifts

    After retiring and preparing for the remainder of one’s life, some people recognize that they have more than enough money to support themselves. When this happens, it’s often wise to begin gift-giving before one’s death (inter-vivos gifts). Since the gift will not be in the testator’s possession, it won’t be part of their estate or will which ultimately minimizes the probate fees for the entire estate. Further, inter-vivos gift giving can have a number of benefits – for a full list, read our blog on the benefits of giving gifts before death.

    Creating Trusts

    Similar to gift-giving, inter-vivos trust accounts can be made to give assets in a more controlled manner. With a trust account, an appointed trustee holds the assets for the use of a named beneficiary. As the trust creator you can specify terms stating when the beneficiary is able to withdraw/use the contents of the trust. Like gift-giving, you are losing ownership of the asset, and therefore the asset will not be subject to probate. A common trust account made for this purpose is the spousal trust. For more information, read our blog on the spousal trust.

    Writing Secondary Wills

    Some common examples of probate assets are bank accounts and real estate.

    In some cases, it’s wise to prepare two wills – one for probate assets and one for non-probate assets. Not all assets are required to go through probate. Generally speaking, a probate asset is one that requires legal authority certifying the executor access to the asset. By having two wills, the non-probate will is administered avoiding the probate courts, and the probate will doesn’t account for the non-probate will’s assets. For more information, read our blog on secondary wills and what a non-probate asset is.

    Naming Beneficiaries in Your Accounts

    In most registered accounts, a beneficiary can be named to become the rightful owner of the account after you pass away. Upon your passing, the account will immediately begin making payments to the chosen beneficiary and will completely avoid the will. The entire account will not be subject to probate fees. Some accounts that can have named beneficiaries include:

    • Registered retirement savings plan (RRSP),
    • Registered retirement income fund (RRIF),
    • Tax-free savings account (TFSA), and
    • Life insurance policies.

    Using Joint Ownership

    Joint ownership agreements are when two or more people equally own a specified asset. When a joint owner passes away, the surviving joint owner is immediately and automatically given sole ownership of the asset. A common scenario where joint ownership agreements are used is someone who wishes to give their home to their spouse if they predecease them. Instead of naming the home to the spouse in the will, they could create a joint ownership agreement now. Like RRSP or RRIF accounts, the joint owner becomes the owner of the asset while the estate doesn’t have to pay probate fees on the asset.

    While the probate fee of 1.4% might seem small, it can sum up to a large chunk of money. Especially with property, as avoiding probate fees on homes can make a huge difference to the overall value of the estate. For example, if a home was worth $1,000,000 its probate fees would cost about $14,000. Will-writers should be mindful of probate when preparing their estate as it can be easy and incredibly effective in some cases to lower probate fees.

    In order to ensure your probate fees are minimized, contact an experienced estate lawyer today. We can advise you throughout the estate planning process, ensuring that you minimize the probate fees that your estate will be required to pay.

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

  • Probate Notice Period: Who needs to be notified?

    Probate Notice Period: Who needs to be notified?

    Before administering an estate, the executor usually must file for probate and receive court approval. Probate confirms the will’s validity and grants the executor authority over the estate assets. The process applies to any estate with a value exceeding $25,000. Before beginning to administer the estate’s assets, the executor must notify specific people about the probate filing. This is known as the probate notice period, and is important for those who may wish to challenge a will’s contents.

    Who is Entitled to Notice?

    Per rule 25-2 of the Supreme Court Civil Rules, the executor who intends to apply for probate must notify interested parties at least 21 days before they submit the probate application. Further, the executor must provide a copy of the will for each person who is to be notified. The people who are entitled to this information and a copy of the will include:

    • All executors and alternate executors of the will,
    • All 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.

    Intestate Estates (Dying Without a Will)

    When you die without a will, your estate is intestate. Your assets are distributed according to the laws of intestacy, and there is an established order of priority for individuals who become your successors. Depending on if the will-writer has a spouse or children, the intestate successors can vary. For more information, read our blog on how assets are distributed in intestacy. Anyone who would be entitled to parts of the estate in intestacy are entitled to a notice of probate.

    In cases where the deceased didn’t write a valid will, the list above is not fully relevant. While there isn’t a will, the estate will likely still go through probate. The person’s estate must be administered and distributed even in intestacy. The people entitled to a probate notice for an intestate estate include:

    • Anyone who is an intestate successor, assuming the estate is larger than what the spouse will inherit and
    • Any creditor who is seeking greater than $10,000 from the estate.

    What This Means for Will-Writers

    Any will that is granted probate becomes public record for any interested person to view.

    For will-writers, this shouldn’t be a concern unless you had plans to disinherit someone from your will. People who want to disinherit an estranged child usually assume that they can do this in a private manner and without the child knowing until after the estate is distributed. This usually isn’t the case as the executor will notify the child of the probate application. From there, it’s safe to assume the child will challenge the will if they’ve been unfairly disinherited. See our blog on invalid (and illegal) reasons for disinheriting a child.

    What This Means for Beneficiaries

    Sometimes, beneficiaries of a will don’t know that they’re a beneficiary and worry whether they’ve been left out of the will. If you receive no notice of probate, and you’re not someone who falls under the intestacy succession plan, you were likely not named as a beneficiary in the will. However, if you would have been entitled to a portion of the estate if it had fallen into intestacy, you could be someone with standing to bring a claim against the estate if you were excluded from the will.

    What This Means for Executors

    Executors need to be aware of these requirements and ensure they know who is entitled to a notice of probate. The estate administration process can be a lengthy journey, and the last thing you want to do as an executor is further complicate the process.

    If you’re unsure who will be entitled to a probate notice for your estate, contact an experienced estate lawyer today. We can help to clarify how the estate administration process will be handled, ensuring that there are no surprises or unexpected results after you pass away.

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

  • Probate, or Proof in Solemn Form?

    Probate, or Proof in Solemn Form?

    Probating a will and proving a will in solemn form are two different legal concepts which can be easily confused. Probating a will, known as proving a will in common form, proves your will is real and properly prepared. Conversely, proving a will in solemn form affirms the validity of a will for the courts.

    Why Probate Your Will?

    In BC, you must probate a will if the estate value is higher than $25,000. This excludes assets held in joint tenancy or with designated beneficiaries. The executor uses the grant of probate to prove to banks that they have authority over the estate. This helps to guarantee that valuable assets are not improperly handled after the owner passes away.

    The Process of Probating a Will

    To obtain a grant of probate, the executor applies to the court. They must file a requisition and evidence in support of the application including:

    • A certificate of wills notice search,
    • An affidavit of the executor attaching the original will and codicils to the will along with any memoranda that are referred to in the will,
    • A detailed statement of the deceased’s assets and liabilities,
    • The plan for distribution contained in the will,
    • An affidavit advising the court of the persons who inherit under the will, those would have inherited had there not been a will and those entitled to claim against the will under the Wills, Estates and Succession Act, and;
    • An affidavit confirming that those who inherit, would have inherited had there not been a will and those entitled to claim against the will have been served with the notice of probate application.

    In some circumstances, other affidavits may also be needed – and it may also be necessary to inform the British Columbia Public Guardian and Trustee of the application for probate. In addition to probate, a person may also need to apply for letters of administration from the court. A full list of the probate forms is available at the Province of British Columbia’s website.

    You should expect to pay approximately 1.4% of the total estate’s value, plus a $200 court filing fee for probate. If you need a grant of probate even though your assets are valued below $25,000, the fees will be waived.

    Why Prove a Will in Solemn Form?

    It’s not common that a will needs to be proven in solemn form.

    A proof in solemn form is conducted when the courts need conclusive evidence as to whether a will is valid, and is the final will of the testator. This is usually only necessary when there is controversy over the validity of a will. In this case, the court can give the executor the burden of proving the will in solemn form. This will ultimately end the dispute and settle if the will is the valid, last will of the testator. The most common instances where proof in solemn form is required are when:

    1. A beneficiary is taking action on the validity of a will. The executor must prove in solemn form that the will is valid; or,
    2. Someone takes action to revoke a grant of probate after a proof in common form. The executor must prove in solemn form that the grant of probate and will are valid.

    The Process of Proving a Will in Solemn Form

    Proof in solemn form is an extensive process. All interested parties are notified of the process. A case in Vancouver from 2009 demonstrates when and why the courts would require a proof in solemn form.

    The case of Romans Estate v. Tassone (2009) demonstrates an instance where an executor is ordered to prove a will in solemn form. Romans gave his house to Tassone, but later signed in his will that a third party, Cardinal, be given the estate home. After Romans passed away, Cardinal sued Tassone, claiming that Romans did not have the capacity to give the house to him and that he used undue influence to receive the house. The judge said that Cardinal must prove the will in solemn form in order to have grounds to sue Tassone; if the will was not conclusively valid, there was no reason to begin the trial. If this will was successfully proven in solemn form, then Cardinal would be awarded the estate because this would mean the will was a valid, final will.

    In Romans’ estate trial, the will’s validity was in question, a beneficiary took action, and as a result, a proof in solemn form was required.

    If you need legal advice on how to probate a will or how to prepare a proof in solemn form, contact an experienced estate lawyer who will ensure that estates are distributed as intended by the will-writer.

    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.

  • 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.

  • 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.

  • 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.