League and Williams Lawyers

Tag: will challenge

  • In Terrorem Clauses: Preventing Estate Litigation in Your Will

    In Terrorem Clauses: Preventing Estate Litigation in Your Will

    Sometimes, will writers are aware that a gift in their will is going to cause conflict between loved ones and could lead to litigation after their passing. Will writers can create an in terrorem clause to help prevent legal conflict arising from their will. This is a clause in a will that makes a gift void if the beneficiary starts legal action challenging the will. By having an in terrorem clause in your will, you can mitigate the chances of will challenges from beneficiaries. An in terrorem clause can be valid in BC; however, there are specific guidelines.

    What It Looks Like

    An in terrorem clause is a provision explicitly revoking gifts to any beneficiary who initiates litigation challenging the will. The clause details the redistribution of revoked gifts. For a simple example, the will could state something along the lines of,

    I declare that any beneficiary of the will shall have any benefits of the will revoked if they begin any litigation related to the will. Any revoked gifts under this provision are to fall into the residue of the estate.

    While this seems straightforward, BC has strict laws on this matter. The courts have been quite particular when considering in terrorem clauses. In BC, there has yet to be a case where the courts have ruled an in terrorem clause valid.

    When an In Terrorem Clause is Void

    People sometimes refer to an in terrorem clause as a “no contest” or “poison pill” clause.

    The case of Kent v. McKay (1982) clarifies exactly when an in terrorem clause will be voided. The three criteria for voiding an in terrorem clause are:

    1. The legacy must be of personal property or blended personal and real property.
    2. The condition must be either a restraint on marriage or one which forbids the donee to dispute the will.
    3. The “threat” must be “idle”; that is the condition must be imposed solely to prevent the donee from undertaking that which the condition forbids.

    The third condition is where most legal disputes arise. Essentially, an in terrorem clause is void if it’s contrary to public policy or doesn’t detail how to redistribute a revoked gift.

    Examples in BC Case Law

    In BC, there have only been a few cases disputing the validity of an in terrorem clause. Looking at the case of Kent v. McKay (as described above), the will writer had an in terrorem clause in his will which was deemed void. The will writer used the clause to prevent his children from taking action against the will. The clause restricted the children’s rights under the Wills Variation Act (WVA), so it was contrary to public policy. Under WESA and the old WVA, children and spouses are entitled to adequate provision for the proper maintenance and support of their lives. It’s important that they’re able to exercise this right if the will doesn’t make adequate provision for them. In this case, the clause may have been valid if it was not applied to the will writer’s children.

    In the case of Bellinger v. Fayers (2003), the in terrorem clause was invalid because it lacked a gift over. The clause was an idle threat. In the will, the clauses stated

    “IT IS MY FURTHER DESIRE, because of an expressed intention of one of the legatees to contest the terms of this my Will, that should any person do so then he or she shall forfeit any legacy he or she may be otherwise entitled to.”

    This directly went against the third criteria. If the provision said that any revoked gift will fall into the estate’s residue, then it might have been valid.

    The Best Way to Avoid Will Challenges

    While there are conditions where an in terrorem clause would be considered legally valid, the clause won’t do anything to ease any tension or anger amongst loved ones. It can be hard, but it’s best to simply talk with loved ones and explain to them why you’re making the provisions in your will that you’re making. Hearing from the will writer and understanding the reasoning behind a bequest is usually enough to ease a lot of tension. Often, loved ones want to have their opinions and voices heard and by talking with the will writer can ease this frustration.

    Further, to avoid any legal challenges to your will due to poor will writing or preparation, seek advice from an experienced BC estate lawyer. We can help to mitigate any risks of will challenges, ensuring your final wishes are respected.

    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.

  • My Parent Gave More of the Estate to My Sibling: Can I Challenge the Will?

    My Parent Gave More of the Estate to My Sibling: Can I Challenge the Will?

    Sometimes, children are surprised when they find out their sibling is inheriting more from their parents, despite their similar relationship. They might it’s unfair and wonder if they can challenge the will and change it, even after their parents’ death. In BC, courts can vary a will that is ruled unfair. To be considered fair, does a will have to give equal provisions to children with the same relationship to the will-writer?

    In short, the answer is no. A fair will by law is one that makes “adequate provision for the proper maintenance and support of the will-maker’s spouse or children”. This means that will-writers still have the testamentary freedom to create their will however they wish. The restriction is that they’re not able to unfairly disinherit a spouse or child. If your sibling is receiving more of the estate, there’s usually not much you can do. To have the will varied, claimants must prove the will didn’t provide adequate provision for their life’s maintenance and support.

    For the sake of this blog post, let’s look consider an example to help understand the principles of unfair wills. Let’s say a parent elects to give $5,000 of their estate to their son, and $150,000 to their daughter.

    When You Can Challenge the Will

    Using the above example, with no details of the circumstances it can be difficult to determine if this provision is unfair. The courts must look at external factors and specifics of the case to fully understand the nature of the provisions. If the son chooses to challenge the will, the courts would look at many different factors in determining whether this $5,000 is an adequate provision or not. Some characteristics and factors the courts will take into account include:

    • The beneficiary’s living situation,
    • The beneficiary’s financial situation and needs,
    • The size of the estate, and
    • The nature of the estate assets.

    Usually, the courts will put a heavy emphasis on the beneficiary’s financial needs. If the son was working a job as a newspaper delivery boy, he could likely prove a financial need in this example and have the will varied. If unfairly disinherited, a child might depend more on government assistance, burdening taxpayers. The child could avoid filing for bankruptcy and social assistance if they inherited a larger estate share. This is the primary function of the disinheritance laws in BC today.

    When a Child is Validly Disinherited

    Even if a parent has a valid reason to disinherit, they’re still able to give the child an inheritance if they choose to do so in their will.

    There are exceptions to this rule. A valid, rational reason consistent with modern Canadian values must justify a disinheritance in a will, according to the Wills, Estates and Succession Act (WESA). Most circumstances allow estrangement as a valid reason for disinheritance. In the same example, if the son ran away at a young age and never returned, he likely wouldn’t inherit, and the parent could validly disinherit him. If a parent can validly disinherit a child, they can give this child as small an inheritance as they want. In most cases, this would mean leaving nothing to the child in the will. For more information, read our blog on valid reasons for disinheriting a child.

    In the end, if one of your siblings received a bit more of an estate than you, there is not a significant chance of successfully challenging the will. You might be able to challenge the will if you believe your inheritance is not adequate or fair due to its extremely different value.

    If you believe you’ve been unfairly disinherited by a parent or spouse, contact an experienced estate lawyer today. We will ensure you receive the inheritance that you’re entitled to – whether that means challenging the will or not.

    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.

  • Why Undue Influence During Will Making is Difficult to Prove

    Why Undue Influence During Will Making is Difficult to Prove

    If a claimant can prove that an interested party unduly influenced the testator at the time of writing, courts in BC can rule the will invalid. Undue influence is described in British Columbia 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.”

    Proving an undue influence claim is difficult because the influence must overpower the testator’s wishes, meaning the will doesn’t reflect their actual wishes. BC allows suggestions and persuasion and does not consider them forms of undue influence. The most common successful undue influence claims involve a will-writer tricked into giving a larger portion of their estate to an undeserving person. Usually, this is someone who recently entered the testator’s life and received a significant portion of the estate.

    An Undue Influence Claim: Who has the Burden of Proof?

    The burden of proof is typically on the claimant to prove that the will-maker was under undue influence at the time of writing. Although, the burden of proof can shift to the defendant if the claimant shows a special relationship between the will-maker and the other person substantially benefiting from the will – known as the presumption of undue influence. The classic example of this is when 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, the person who benefited from the gift must prove that it was not made because 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.

    Will Writing While Terminally Ill

    In BC, someone’s persuasion during the will writing process doesn’t qualify as undue influence.

    While unsuccessful, there was a recent case in the BC Supreme Court where a woman’s godchildren were claiming her will was invalid on the grounds of undue influence. The woman was in the hospital with an inoperable brain tumour in 2016. During her time in the hospital, she rewrote her will from 2009 – writing two new wills within five days. The woman had no children; however, her godchildren argued before the courts that she was under undue influence when writing these final two wills.

    They believed that the will from 2009, not the other two, represented her final intentions and should be valid. The defendants, the woman’s common-law spouse and his grandchildren, argued that the new wills expressed her mind and it represented her wishes. The new wills were similar in most aspects to the 2009 will; however, the new wills gave more to the common-law spouse and his grandchildren, at the expense of the godchildren’s shares of the estate.

    The Role of Legal and Medical Professionals

    On the day she wrote the first new will, she met with a doctor who confirmed her awareness of her terminal illness and her limited time left. The lawyer who helped prepare the will that day described her as very confused about why the lawyer was visiting and what he was doing with her affairs. The lawyer further explained that the woman could engage in conversation, had a clear memory of some things, but had troubles remembering things like the date and where she was. The woman also could not give the exact names of her grandchildren. Further, she was unable to answer the lawyer’s open-ended questions and needed prompts to give answers. The woman was clearly not in a sound mental state when she prepared the will.

    The lawyer and her two legal assistants confirmed no signs of confusion or misunderstanding from her on the day they signed the wills. The lawyer explained clearly that the will did not have to be changed unless she wanted to make specific adjustments. The judge needed to determine if her mental state resulted from her brain tumour, the stress of her terminal illness, or if her common-law spouse had unduly influenced her.

    Was This Proof of Undue Influence?

    The case facts suggest that her common-law spouse likely persuaded the woman to some extent to make these changes. While there may have been significant influence, the godchildren could not prove that there was undue influence – that she was expressing something that she did not really mean in her will. She had spent nearly 30 years with her spouse, and it made sense that she would want to include his grandchildren in her will.

    The judge explained that it’s not uncommon for people to rewrite their will after learning they’re terminally ill. People who are in this position tend to think about their estate and what will happen upon their passing. In the end, the burden of proof was on the godchildren to prove that the woman was under undue influence and they could not do this to the satisfaction of the courts. Even though the woman might not have been in the clearest mental state, there was no proof beyond a reasonable doubt that she didn’t intend to make these changes to her will. The court dismissed the undue influence claim, ruling that the woman had the necessary testamentary capacity to execute the wills and found no evidence of undue influence.

    What This Means for Future Cases

    This case helps to clarify how a claim for undue influence can be successful. Will-writing is stressful for most people, and it is assuring to know that final wishes will be honoured. In only the most extreme and conclusive cases will a court revise a person’s will. The doctrine of undue influence is meant to further ensure that will-maker’s true intentions are respected. If you think that someone you loved was under undue influence during their will making, contact an experienced estate lawyer today.

    For more information, read our page on proving an undue influence claim in BC.

    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.

  • Will Challenges Affect All Children, Even Those Not Challenging

    Will Challenges Affect All Children, Even Those Not Challenging

    BC has some of the most favourable estate laws for children who have been unfairly disinherited by their parents. The courts insist that parents provide ‘adequate provisions for the proper maintenance and support’ of their children unless they have legally valid reasons to not do so. When children believe they’ve been unfairly disinherited, they can challenge the will. Some might be surprised to know that under s.61(4) of the Wills, Estates and Succession Act, the courts will treat any will variation challenge as a proceeding on behalf of all the children, even those not directly involved in the challenge.

    Will Challenges on Behalf of All the Children

    When one child begins a will challenge, it is likely that all of the children will be impacted. Some children could be left with less inheritance than expected, while others are given more of the estate.

    In order to disinherit someone, the will-writer must have a reason that is valid, rational, and consistent with modern Canadian values.

    The most common type of will challenge arises when a parent completely disinherits one child, but splits the estate equally amongst their other siblings. The child challenges the will before the courts, who may modify the will to make provision for the disinherited child. The other children are usually opposing the challenge, defending their case. In these instances, the children are usually arguing on their own behalf trying to maximize their inheritance.

    In some cases, a child who defends against a will challenge might even benefit from the variation of the will. The case of Graham v. Chalmers (2010) shows how this might happen in BC.

    Defending Against Yourself?

    In the case of Graham v. Chalmers, the will-writer, Delores, had named her two children, Janet and Sandi, and her two grandchildren as beneficiaries of her will. Delores had a legal obligation to provide an adequate, just and equitable provision to Janet and Sandi, though there was no legal obligation to give an inheritance to her grandchildren. Delores elected to equally distribute the estate amongst the two children and two grandchildren, 25% each. However, Janet found this distribution problematic because both of the grandchildren were Sandi’s children. In essence, 75% of the estate was being given to Sandi’s “side of the family” and 25% to Janet’s.

    Janet challenged the will, claiming that she was not given enough of the estate. The courts considered what ‘adequate provision’ means in this scenario, and concluded that the will did not provide adequately for Janet. The will was varied to give Janet and Sandi each 40% of the estate, and the grandchildren 10% each. In this case, Sandi was defending the claim as the executor, however, she ended up benefitting from the successful challenge. Instead of receiving 25% of the estate, she ended up with 40%.

    An Example From Case Law

    In Bowling Estate (Re) (2022), the BC Supreme Court considered an application from a beneficiary who had sought legal advice when the executor ignored their questions about the estate administration. The deceased had appointed one of her four children as executor, and divided the estate equally among the children. Administration was somewhat delayed, as it took over one year to receive a grant of probate. However, the estate wasn’t complicated as there wasn’t conflict between children regarding their shares, and the estate was mostly liquid.

    One year after probate was granted, one of the siblings asked the executor questions about the administration, and was ignored. The executor never answered these questions, or explained why she was ignoring them. The executor began distributing assets from the estate, and her sibling continued to ask questions about the administration. Eventually, the sibling retained a lawyer, hoping to force the executor to answer her questions transparently and provide estate accounts. Both the executor and the sibling claimed costs ranging from $10,000 to $11,500 for their expenses relating to the application and the formal passing of accounts.

    The Opinion of the Court

    In general, reasonable legal fees related to estate administration are covered by the estate. The judge had to consider if the executor’s conduct was so improper that she should not be able to recover her legal expenses from the estate, and if it was reasonable for the sibling to recover her $11,500 in legal fees for bringing the application. The judge pointed out that there were two other siblings who had chosen not to participate in the application, who had no objections to the administration or the formal accounts. They would be adversely impacted by an order to assign costs to the estate, as it could lower the total value of their respective shares by up to $5000. 

    The significant impact of an order for costs upon the other beneficiaries was a key reason for the court’s decision. The judge ordered that the executor could only recover $6000 from the estate, and was liable for the remaining $4000. Finally, the court acknowledged that the sibling had acted reasonably in her concern for the executor’s lack of communication, but pointed out that the conflict could have been resolved outside of court. Because the sibling consented to the formal accounts, the litigation only took place because the sisters couldn’t agree on costs. The court ordered the executor to personally pay $6000 to her sibling in costs.

    Ultimately, the executor was personally liable for her unreasonable delay and lack of communication to some degree. However, the court was clear that conflicts of this nature, particularly where are beneficiaries will suffer as a result of the conflict, should be resolved outside of court where possible.

    Reminders for Beneficiaries

    As a beneficiary, you can still be impacted by a will variation challenge that you are not directly involved in. If other beneficiaries claim they’ve been unfairly disinherited, you should be prepared to lose parts of your inheritance. Any will challenge in BC will proceed on behalf of everyone who may have been unfairly disinherited or unjustly compensated. If you’re unsure how you might be affected by a family member’s will challenge, 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.

  • 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.

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

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

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

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

    How Does the Doctrine Work?

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

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

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

    Reversing the Burden of Proof

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

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

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

    Proof in Solemn Form

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

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

    Key Takeaways

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

    If you have been unfairly disinherited and believe suspicious circumstances impacted the testator, contact an experienced estate lawyer today.

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