League and Williams Lawyers

Tag: Wills Estates and Succession Act

  • Fixing a Broken Will – What can the court do?

    Fixing a Broken Will – What can the court do?

    Hello and welcome to this week’s blog on the law.  In past video blogs, we’ve talked about reasons why people challenge wills.  Undue influence and unfairness are two common reasons.  A third reason is that the will does not meet the formal drafting requirements for a valid will – that is the will itself is “broken” because it does not meet the three basic requirements in order to be valid.  This blog will discuss what the basic requirements for a will in British Columbia are and what the court can do to fix a broken will.

    What are the 3 basic requirements for a valid will in British Columbia?

    There are 3 requirements for a valid will in British Columbia, these are:

    1.  First, the will must be in writing;
    2.  Second, the will must be signed at the end, and;
    3.  Third, it must be properly witnessed.

    Prior to fairly recent changes to BC law in 2014, if a will was missing one of these key elements, for example, if it was not witnessed, the courts would invalidate the will.  While the courts could invalidate a broken will, they were not, prior to 2014, able to fix a broken will.

    If a British Columbia will fails to meet the basic requirements, can the courts fix it?

    In 2014, the legal framework surrounding wills and estates in British Columbia changed with the introduction of new legislation called the Wills, Estates and Succession Act.  One of the biggest developments contained in the new law was something called a curative provision.  This means that in cases where a will does not fully satisfy the formal requirements, the courts can now cure, or fix, the deficiencies in the broken will and pronounce a will valid.

    What must be done in order for a BC court to fix a broken will?

    In order to be able to invoke these powers to fix a broken will, the court must be satisfied of two things:

    1. First, the court must be satisfied that the document is authentic. Essentially this means the court asks, was this document prepared by the deceased? and;
    2. Second, and most importantly, the court must ask, does this document truly represent the intentions of the deceased.  That is, is it a fixed and final expression of the deceased’s wishes?  Or in other words, did the person making the document mean for it to be their final will?

    The courts, in determining whether a document represents a valid will, will look to a wide variety of evidence.  This evidence includes: the presence of the deceased’s handwriting; whether the will had witness signatures; whether the document revoked previous wills; did the testator include plans for funeral arrangements; and did the testator include specific gifts.

    Want your last wishes respected? Avoid creating a broken will in the first place.

    Since the new laws have come into force, people have creatively tried to prove a number of documents as being valid wills.  These range from handwritten notes on scrap paper, to journal entries, to letters.  Although the courts are given broad power, the further a document departs from the formal requirements of a will, the harder it is for the courts to find it embodies the deceased’s testamentary intention.  In the end, it is always best to seek the advice of a lawyer in finalizing your will.  Failing to do so can mean your final wishes will be ignored.

    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.

    Matthew Melnyk is an associate lawyer with League and Williams.  Matthew practices in the areas of injury law, estate disputes and marine law.  He is a competent lawyer who practices as part of the League and Williams team and may be reached at 250-888-0002 or via email at info@leaguelaw.com.  League and Williams offers free consultations and has built their practice on client satisfaction. 

  • Disinherited? Reasons a BC estate can or should be challenged? (Video Blog)

    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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Sources:

    BC Vital Statistics Agency

    Making a Will and Estate Planning, The Canadian Bar Association

    Wills, Estates and Succession Act