League and Williams Lawyers

Tag: unfair Will

Equally Divided Will Found Unfair By B.C. Supreme Court

Unfair provisions in a will can be changed under the Wills, Estate and Succession Act (WESA) in British Columbia. However, the recent B.C Supreme Court case of Rawlins v. Rawlins (2023) demonstrated that even a will divided into equal shares can be unfair.

Varying a Will Under WESA

WESA defines a will writer’s duty to provide ‘adequate provision for the maintenance and support’ of their spouse and children. Importantly, this provision applies even to adult children of the testator. There are only narrow exceptions which allow will writers to disinherit their children, discussed in our article here. If a dependant was unfairly disinherited, or inherited an unfair amount, they can apply to vary the will. Interestingly, in the case of Rawlins, a completely equal division of estate assets was still found unfair.

Facts of the Case

Marguerite Rawlins had three sons, and her husband had predeceased her. Her estate was valued at around $2.5 million in total, comprising of her house, investments and cash. Her will divided the total value of her estate into three equal shares to be divided between her sons.

Care provided in end of life years is often the subject of moral rights claims to an estate.

Her son Roy raised a claim under WESA, stating that this division of his mother’s estate was unjust. First, he claimed unjust enrichment against the estate and an enhanced moral claim to the estate’s assets. Roy believed the estate had been unjustly enriched due to his contributions to the maintenance of his mother’s home. Further, he believed he had an enhanced moral claim to the estate due to the significant care he provided his parents in their final years, which his brothers did not participate in. He further claimed that his parents had told him he would receive the home and specific investments upon their death.

His brothers disputed his claim that the division of assets was unfair, even in light of Roy’s contribution to his parents’ care. They said that, because Roy had been allowed to live rent-free with his parents for his entire adult life, his benefit from his parents throughout his life outweighs the benefit he gave to them through his care.

The Court’s Decision

The judge considered the standard set in Tatyryn v Tatyryn, that the distribution of estate assets should be ‘adequate, just, and equitable’, and the Courts should only intervene where the distribution chosen by the will writer falls below that standard. Ultimately, the Court found that Roy failed to prove that the will did not make adequate provision for him. However, his claim of unjust enrichment was successful. Roy received a gift of $115,000 on top of his share of the estate. The remaining value of the estate was divided equally between the brothers.

Those creating their estate plan should take notice of this case which demonstrates that even equal provision of estate assets can give rise to estate litigation and variation of their will. In order to reduce risk of costly estate litigation between beneficiaries after your death, it’s important to consult an experienced lawyer to create a comprehensive estate plan suited to your unique situation. Further, will writers should keep their beneficiaries up to date with their estate plans and avoid surprises.

If you have questions about creating an estate plan or updating an existing one, 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.

September 15, 2023
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.
March 3, 2020
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.
May 3, 2018
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.

June 12, 2017
Disinheritance: That’s It – You’re Out of the Will!

Reasons for disinheritance must be both true and rational

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

Untrue reasons may be challenged

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

Irrational reasons may be challenged

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

Disinheritance for reasons inconsistent with Canadian social values may be challenged

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

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

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

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

January 31, 2017
Undue influence: When will-makers are persuaded to disinherit

Undue influence: grounds for an estate dispute

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

Making the case: what needs to be proven?

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

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

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

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

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

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

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

January 24, 2017
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.

January 10, 2017
Disinherited? Reasons a BC estate can or should be challenged? (Video Blog)
Good reasons for the disinherited to challenge a will

In a previous blog we discussed who had standing to challenge an unfair will in British Columbia. In this week’s blog I want to outline the general reasons that a person who is disinherited by a will might be able to successfully challenge it in British Columbia.

Before diving into that topic, however, I want to address a comment I hear from time to time, and that is why should someone who is disinherited be able to challenge a will at all? That is, why can’t a testator, that is a person whose will it is, decide, and have the final say no matter what, on what happens with their money after they are dead. It is their money after all, right? There are several good answers to this question.

One reason that is often given is that when a person does not provide adequate support for their spouse or children by disinheriting them, government services, such as disability or welfare, must support that person, and this shifts the burden of financial support from the testator to the tax-payer, which is all of us, because we are the ones who fund those services.

Not everyone may agree with that reason, but if you watch some of our other blogs and understand some of the bizarre reasons people are disinheriting their family members, you may start to appreciate that perspective.

Now, on with the reasons a person who is disinherited may challenge a will. Each of these reasons will be addressed in detail in our future blogs.

Wills that are not valid can be challenged

The first reason is that the will is not a valid will at all. This can be the result of several reasons:
- The person writing the will may have been ill or otherwise lack the capacity to understand what they were doing when the will was written and signed.
- The testator may have had the capacity to understand what they were doing, but have been grossly mistaken about what they were doing in their will.
- The testator may have been under strong, or undue, influence by another person, including another family member or other beneficiary to write the will in a certain way.
- Lastly, the will may not have been properly drafted and signed. There are formal requirements for drafting and signing wills that are discussed in another one of our blogs, which must be followed for the will to be valid. Courts in British Columbia do have some power to correct wills that are not properly drafted and signed, but this power is not limitless.
Importantly, anyone who is in a prior will of the testator, or who would be entitled to a portion of the estate if the will is not valid, can challenge the last will of someone on these grounds.

Unfair wills may also be challenged by the disinherited

The second reason a will can be challenged in British Columbia is that a valid will may be unfair to a spouse or a child, even a financially independent adult child. By unfair I mean the testator does not provide adequately for the proper maintenance and support of that person.

We address in detail what is “adequate provision for the support and maintenance” of a spouse of child in another blog, but essentially the law looks to whether the testator has a legal or moral obligation, or both, to provide financial support, and if the will does not do so, the court can change the will.

Indeed, the court’s power to change a will in British Columbia is broad and the testator sometimes does not have the last say. I hope you have learned something 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.

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.
November 10, 2016
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.

August 22, 2016
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

April 9, 2015