League and Williams Lawyers

Tag: wills

  • Drafting a Will: The Basics

    Drafting a Will: The Basics

    Before worrying about technical requirements of a valid will, it’s important that testators understand the basics. Will writing goes well beyond simply distributing assets to different loved ones, and testators should understand this. Some of the most important tasks of a testator include: appointing an executor, appointing legal guardians and representatives, choosing beneficiaries and choosing how to distribute the estate.

    Appoint an Executor

    Your executor is responsible for its administration of your estate after you pass away. Some of the tasks an executor is responsible with include paying outstanding debts, selling estate assets, and distributing gifts to beneficiaries.

    The appointed executor(s) are usually entitled to receive executor’s fees as compensation for their work as executor.

    Depending on the size and complexity of your estate, the job of the executor can be extensive. We recommend that you choose an executor who you can trust and is willing and able to complete the job. The executor can be a beneficiary in the will. Sometimes, people will name all their children as joint executors of their will. This way, each child has a part in the administration, and it helps to distribute the work load. Having multiple executors can reduce the risk of fraudulent behaviour, as each executor has to approve of the decisions made on behalf of the estate. However, it may give rise to other problems in the administration process if the joint-executors disagree on certain issues.

    Appoint a Guardian

    If you have children under the age of 19, it’s important to appoint someone who will be their legal guardian. If both of the child’s parents pass away, a guardian is someone who will be the caretaker for your minor children. When a guardian is not named in the will, the family courts have to appoint someone. To have full control, it’s always best to include an appointed guardian in your will.

    When appointing a guardian, it’s best to speak with family members to see who would be the best fit for your children. Depending on their age, it can be a huge responsibility to undertake guardianship and the appointed guardian must be willing. Typically, an appointed guardian is one of the testator’s siblings or another close family member.

    Plan For Future Incapacity

    Will-writers should appoint a power of attorney to handle their financial and legal matters should they become incapable. The circumstances under which the person can make decisions is dictated by the power of attorney agreement. The most common form is the enduring power of attorney. This is when you appoint an attorney to make decisions for you only if you become incapable in the future. The appointed enduring attorney only has the authority while you’re incapable of making the decision on your own behalf.

    A representation agreement is very similar to a power of attorney agreement. However, representatives are usually tasked with making health and personal care decisions. It’s often a good idea to appoint a representative and a power of attorney as part of one’s estate plan. Your estate plan can also include directions and for the representative to follow, ensuring they understand your wishes.

    If your estate plan doesn’t appoint a power of attorney or representative, a committee must be appointed if you become incapable in the future. Unlike the power of attorney or representation agreement where the parties simply create a contract, a committee must apply to the courts to be given authority. Since this is a court process, it will often be lengthy. Also, the incapable person would have little say in who applies and becomes their committee acting on their behalf.

    Pick Beneficiaries

    Beneficiaries are the people who you are going to give gifts from your estate to. Beneficiaries in a valid will can be anyone; inheritance is not limited only to family members of the deceased. People can also select charities and organizations as beneficiaries in their will. While testators have full control to choose how to distribute their estate, spouses and children cannot be unfairly disinherited in BC. Testators must make adequate provisions for the proper maintenance and support of their spouse and children in their will. In some cases, parents can have valid reasons for disinheriting a child which allow the testator to override this provision.

    Some testators choose to only name their children and spouse as beneficiaries, while some testators name close friends, charities and relatives as beneficiaries. It’s up to you as the testator to decide this on your own, without being unduly influenced by anyone.

    Distribute the Estate

    Once you know who you want to give your estate to, you must decide how much of and what to give each beneficiary. You can also decide how you want the estate assets distributed (i.e. to distribute your physical assets as they are, or sell them and distribute the funds). When gifting a large asset like a house, it can bring along many responsibilities and expenses for the beneficiary. It’s a good idea to work with the beneficiary and understand their position on receiving the gift.

    Sometimes it’s easiest to sell all the estate assets and give each beneficiary a specific percentage of the estate residue. This isn’t always the case, as families often have assets that they want to pass down for generations to come. In the end, it’s at the discretion of the testator how they choose to distribute their estate.

    The Formalities of a Valid Will

    By law, you do not need a lawyer to draft a valid will in BC – you can make your own. However, we strongly recommend testators get advice from an experienced will-drafting lawyer. There are various different formalities to consider when writing a valid will. In addition, there are many different tips and tricks to reduce any risks of confusion when people are reading your will. As an example, the wording in a simple provision can have various different legal meanings which can interfere with the administration of the estate in the way which you intended.

    When a testator is giving a gift to “their children,” it may seem obvious nd clear who is to receive the gift. However, does “their children” only include birth children? This could include their stepchildren as well. This is only one of hundreds of different mistakes and misunderstandings that can arise from a poorly drafted will.

    Even though there are many do-it-yourself kits for wills online, we encourage everyone to at least hear the advice of an estate lawyer before finalizing their will. Fixing any discrepancies or ambiguities before it’s too late can save your estate and your family significant amounts of time and money in legal fees. If you need help drafting your will, contact an experienced estate lawyer today. We can ensure that your will is written properly and won’t cause any problems for your loved ones after you have passed 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.

  • Picking an Executor: Who Should You Choose?

    Picking an Executor: Who Should You Choose?

    Choosing an executor for your estate is a key step in the will-writing process. There are many factors to consider, and it’s not always as simple as choosing a family member or friend. The job of an executor can be complex, involving many different tasks as they prepare the estate for distribution to beneficiaries. Before appointing an executor, it’s important to understand who is eligible, and who would be a good fit.

    Who Can Be an Executor?

    Almost anyone can be the executor of a will in BC. This can include beneficiaries named in the will, a spouse, a best friend or even a lawyer. The only requirement is that the executor is not a minor (they must be at least 19 years old).

    Naming Multiple Executors

    A person named as the executor of a will can decline the duty before beginning the estate administration.

    Will-writers are able to name multiple people as executors of their will – known as co-executors.  This is beneficial in some cases as it spreads the workload across multiple people. However, co-executors must agree to all decisions made on behalf of the estate. This can further complicate or prolong the estate administration process. Frequently, parents choose to name all of their children as co-executors in the interest of fairness. If some of the children have moved away, the task of coordinating the administration process can become more difficult. Naming co-executors can be beneficial in some cases, but can be detrimental in others. It is important to carefully consider who to appoint. In cases of co-executorship, it is essential that the executors are able to work well together.

    Naming a Professional Executor

    For will-writers looking for a truly neutral party to act as executor, a professional executor can be appointed. They are often lawyers, notaries or accountants. This will cost more than naming a loved one would, however, it will ensure that the estate is administered at a professional level. Sometimes, people choose to name a professional and a family member as co-executors. This way, the family member can handle most of the estate affairs, and the professional can assist them. This ensures that the administration is done properly and efficiently. For more on this, read our blog on whether you should appoint a professional executor or not.

    Characteristics of a Good Executor

    Will-writers should be sure that they are choosing the right person to act as executor of their will. Will-writers should choose an executor who is objective, trustworthy, lives nearby, and willing to take on the role.

    a)      Objectivity

    Executors must act in the best interest of the estate’s beneficiaries and strictly adhere to the will’s directions. If the executor is named as a beneficiary in the will, which they often are, they should always be acting from an objective standpoint. The executor cannot act in ways to maximize their benefit from the estate at the cost of other beneficiaries’ entitlements. Objectivity is essential to the estate administration process and it’s important that the executor can take a neutral position when making decisions on behalf of an estate.

    b)      Trustworthiness

    Because of the authority and power that an executor has over the distribution of an estate, will-writers should always name someone who they feel is trustworthy. Estate administration can involve handling large amounts of money – paying unpaid debts owed by the estate, selling estate assets, etc. Even though executors must provide a detailed account of everything that went in and out of the estate, an interested party must be very thorough to notice if the executor has attempted theft.

    c)      Residing in the Same City

    Naming an executor who is living near the place where the estate assets reside is very important. If someone who lives outside of Canada is named as executor, there can be significant complications as they transfer the estate’s assets. Further, they will run into a number of obstacles trying to fulfill all of their responsibilities while abroad. It is always recommended that the executor be someone who lives in the same city as the assets, or someone who can easily travel to the city for an extended period of time to administer the estate.

    d)      Willingness

    If you are named the executor of an estate in a will, you will not be forced to take on the role. Will-writers should talk with the people who they want to be their executor to ensure that they are willing and prepared to take on the responsibility. Someone who is unwilling or reluctant to administer the estate is less likely to do a good job of the administration, or could cause significant delays in the distribution of the estate. Even if you think someone would be a great fit for the job, you must make sure they are willing. Usually, the executor’s job requires significant time and energy, and the role can place a large burden on some.

    If your estate is large and complex, it can feel like a second full-time job to your executor as they work to administer your estate. Ensuring that an executor understands the role they’re agreeing to and the tasks which they’ll be responsible for is important in making sure they can handle the job. It is advisable to discuss the role with the person who one would like to name as their executor before their death, as if an executor renounces their title after the death of a testator, the courts will have to appoint a new one which may conflict with one’s final wishes.

    Ultimately, it’s up to the will-writer to choose who their executor should be. If you’re unsure who to appoint, contact an experienced estate lawyer today. We can help you to pick someone who will properly administer your estate.

    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.

  • Whiting-Out or Erasing Part of a Will: Valid Modification?

    Whiting-Out or Erasing Part of a Will: Valid Modification?

    After a testator has finished writing their will, they may want to make a modification at a later date. There are specific procedures that will-writers must follow for any revision in a will to be legally valid. While it can be clear what the testator had intended by their revision, unofficial changes to the document can result in a lengthy court process to cure the will to make the change legally valid.

    Valid Will Alterations in BC

    Section 54 of the Wills, Estates and Succession Act (WESA) identifies the circumstances in which modifications to a will are valid. The criteria for a valid modification is the same criteria for the initial creation of a valid will. In order for a will’s modifications to be legally valid in BC, it must:

    1. Be in writing;
    2. Be signed by the testator, and;
    3. Be properly witnessed and signed by the witnesses (two or more people).

    Sometimes, it’s unreasonable to expect the above steps for a simple revision. S.54 of the WESA further explains these requirements can be set aside when:

    1. The alteration is not substantive;
    2. The alteration is to adjust form, style, or a typographical error;
    3. The alteration is made effective by an order pursuant to the courts curing the will.

    To explain part 3, the Courts can rectify an error in a will to ensure the will reflects the testator’s intentions and is valid. This happens when the will-writer had a clear intent to modify the will, but did not make a valid modification or made a mistake. The courts can rectify an error when it’s clear that the testator made a mistake.

    Using White-Out to Modify a Will

    Eraser marks and white-out could be used to validly modify a will.

    Levesque Estate (Re) (2019) asked whether a will in BC could be validly modified using White-Out, a white-coloured liquid used to cover ink on paper. The will-writer originally wrote in her will to equally split her estate amongst her children and eldest grandchild. After her death, beneficiaries discovered that the provision giving a share of the estate to the grandchild was covered with White-Out.

    The Court’s Decision

    Unfortunately, in this case there were no witnesses or signatures to verify the modifications. Since this is not a valid modification, the Courts looked into whether the requirements could be avoided. The alteration was substantial and the original was not completely illegible – when held under light, one could easily read what was under the white-out. The only way this alteration could be valid was if the Courts cured the will to rectify the error. The Courts ruled that the intention of the will-writer was to remove the grandchild from the will. The lack of proper procedures in making the change was not sufficient to prevent her intentions from being followed. The grandchild was legally removed as a beneficiary of the will. Because the claim arose from the actions of the will-writer, the estate paid for the associated legal costs.

    If you want to make a modification to your will, it’s important to follow the proper procedures in doing so. There must be two witnesses of your signature. Failing to follow the adequate procedures will likely result in Court proceedings, like in the example above. While the will-writer’s intentions were followed, the trial costed significant time and money for the estate and beneficiaries. Further, a will-writer cannot be certain that the Courts will uphold a change. It’s not always possible to establish that the will-writer made the change.

    If you want to make a revision to your will, contact an experienced estate lawyer today. We’ll ensure your will is modified validly.

    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.

  • Survivorship Period: The Five-Day Survival Rule

    Survivorship Period: The Five-Day Survival Rule

    Will writers can specify a survivorship period where the beneficiary must survive the will-writer beyond a specified period, or else their gift will be lapsed and given to someone else. Essentially, a survivorship period gives the will-writer more power over how their estate is to be distributed. When a survivorship period is not specified in the will, there is a five-day survival rule by law in BC.

    Five-Day Survival Rule

    The survivorship period should consider the anticipated survival time of the beneficiaries and the overall time to administer the estate.

    Under section 10 of the Wills, Estates and Succession Act, in order to receive an inheritance, the beneficiary must survive the deceased by five-days or longer. If a beneficiary dies within five-days of the will-writer’s death, they are deemed to have died before the will-writer for all estate purposes. Will-writers cannot shorten the survivorship period; however, they are able to extend it. It’s common for will writers to extend the survivorship period to 30 days.

    If a joint asset is held between two people, each dying within five-days of each other, the asset is given one half to each joint owner. As an example, Jack and Jill jointly own a house together. Jack passes away on May 22nd, 2020 and Jill passes away on May 25th, 2020. Under the five-day survival rule, Jill would not be entitled to anything in Jack’s will and his estate would be distributed as if Jill deceased before him. However, since it’s a jointly owned property, Jack and Jill would each receive 50% of the property’s value, to be distributed according to each of their wills.

    Benefits of a Survivorship Period

    While it’s clear what the survivorship period and five-day survival rule do, it’s not always clear what their purpose is. In some cases, it can be difficult or even impossible to determine who dies first. In a fatal car crash for example, it’s impossible to know whether one passenger briefly survived the other. It’s unreasonable for the courts to guess and have one person receive an inheritance, while the other wouldn’t.

    If you’re unsure how long a survivorship period to include in your will, contact an experienced lawyer today. We can ensure that your estate is distributed according to your wishes.

    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.

  • Stepchildren Challenging a Will: Suing on Promises Broken Under Mutual Wills

    Stepchildren Challenging a Will: Suing on Promises Broken Under Mutual Wills

    In BC, courts can rule a will unfair and vary it if it doesn’t make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. This ensures that individuals can’t disinherit spouses and children without sufficient cause. But what about stepchildren? According to the Wills, Estates and Succession Act (WESA), a child is a natural birth child or a legally adopted child. WESA does not consider a stepchild as a child unless the stepparent legally adopts them.

    Stepchildren can’t vary a stepparent’s will under WESA. However, there are ways that stepchildren can challenge a will. These scenarios can arise if:

    Suing on Promises Broken Under Mutual Wills

    Spouses create a mutual will to grant the surviving spouse the majority or entirety of their estate. After both spouses pass away, the estate divides among their beneficiaries based on the will’s terms. When stepchildren are part of the equation (from past or future relationships after a spouse’s passing), creating a mutual will becomes crucial. The primary purpose is to provide for a spouse while ensuring fair distribution of the estate to their own children in the future. If one of the spouses in a mutual will agreement passes away, the surviving spouse can’t alter the will. This prevents stepchildren from being unfairly disinherited if their birthparent dies before their step-parent.

    An Example From Case Law

    Unfairly disinherited stepchildren cannot directly file a wills variation claim against their stepparent’s will.

    A case in White Rock, BC, Wright Estate (Re) 2012, highlights the ability of the courts to give stepchildren the proper inheritance when there is a promise broken under a mutual will. A married couple, both of whom had children from a past marriage, wrote a mutual will together. Neither of them chose to adopt the other’s children. The husband, who was significantly wealthier than his wife, specified that he would provide for his wife for the entirety of her life, give a small portion of the estate to her children, and give the remainder of his estate to his own children. The intention being that his children would be receiving a large majority of his estate.

    When the husband passed away, his spouse changed the will, electing to give the estate to her children, and nothing to her stepchildren. This directly contradicted the mutual will that they agreed to while he was alive. The stepchildren sued her for the promise broken under their mutual will. At the end of the summary trial, the judge ruled that this was a broken promise, and the challenge was successful. The children were entitled to the share of the estate that their father had intended.

    Reminders for Will Writers

    This case makes it clear that stepchildren can successfully challenge a will in BC in some circumstances. When a stepchild’s biological parent creates a mutual will, their parent’s requests and intentions will be respected. If you are a stepchild and you believe a promise was broken under a mutual will, contact an experienced estate lawyer today.

    Have a question about estate disputes 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.

  • Subpoenas for Testamentary Documents: Getting a Copy of the Will when the Executor Refuses

    Subpoenas for Testamentary Documents: Getting a Copy of the Will when the Executor Refuses

    Beneficiaries, spouses and children have the right to receive a copy of a testator’s will, regardless of the executor’s opinion. When executors refuse to provide a copy of the will, beneficiaries can issue a subpoena. According to part 25 of the Supreme Court Civil Rules,

    “A person may apply for a subpoena to be issued to require a person to deliver to the registry one or more of a testamentary document, an authorization to obtain estate information, an authorization to obtain resealing information, an estate grant, a foreign grant, a resealed foreign grant and a certified or notarial copy of such a document.”

    To use a subpoena to request a copy of a document, you must have a valid reason.

    The Subpoena Process

    To clearly illustrate the process, let’s look at an example. A woman, Ann, is one of the beneficiaries of a will. Todd is the executor. Todd is in possession of the testator’s final will.

    a)      Failure to Deliver a Copy of the Will

    A subpoena gives the executor a deadline of 14 days to provide a copy of the will to the courts.

    Ann needs a copy of the will to see how her inheritance will impact a certain tax benefit. Since she is a beneficiary of the will, she requests that Todd provide her with a copy. After multiple direct requests to Todd for a copy of the will, he fails to deliver one to her. There could be many reasons that Todd is choosing to do this. However, these reasons don’t legally justify his refusal to provide a copy of the will. Ann decides to issue a subpoena to the courts to enforce Todd to act on his responsibility as the executor.

    b)      Issuing a Subpoena

    The person who requests access to the document needs a valid reason, and the person who receives the subpoena must have previously refused to provide that document. Applying this to the example above, once the courts issue Ann’s subpoena, she serves Todd with the documents directly and in-person.

    Todd has three options after receiving the subpoena:

    1. Comply with Ann’s request by giving the courts a copy of the will;
    2. Explain in front of the courts how he is not in possession of the will anymore; or,
    3. Challenge the subpoena claiming that it’s unnecessary to comply with it.

    c)      Enforcing the Subpoena

    If Todd has not done anything after 14 days, Ann can involve the police to enforce the subpoena. Ann must provide proof that the subpoena was served, proof that she requires a copy of the will, and a copy of the court’s subpoena issuance. Now, Todd can be apprehended and brought before the courts where he could be detained in custody. Todd can also be ordered to pay any costs that arose to Ann because she was not given a copy of the will upon her valid request.

    If you’re a beneficiary who is not receiving a copy of the will after multiple requests, 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.

  • 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.

  • Invalid Wills: Suspicious Circumstances and Why They are Important

    Invalid Wills: Suspicious Circumstances and Why They are Important

    In BC, interested parties can challenge a will if they believe it is invalid due to suspicious circumstances like undue influence or lack of capacity. The courts presume a will is valid if it meets the following requirements:

    • The will must be in writing;
    • The will must be signed at the end by the will-maker, and;
    • There must be two witnesses to the signing.

    The will-writer must have been aware and in approval of the will’s contents, and have had the testamentary capacity to create the will at the time of it’s writing. Testamentary capacity is a person’s legal and cognitive ability to write a valid will. The testator must understand the purpose of a will, decide how to distribute their assets, and be mentally capable of making free decisions. Sometimes, we may be uncertain if the will-writer had the mental capacity to create a will when they wrote it, especially if they were in a state of terminal illness.

    What are Suspicious Circumstances?

    Suspicious circumstances are important because they threaten the presumption the will is valid. The courts consider suspicious circumstances as situations that raise doubts about the will-writer’s mental capacity, approval of the will’s contents, and their freedom to sign the will without undue influence. Claimants can dispute the validity of a will due to suspicious circumstances, and the courts may invalidate that will. The fact that there were suspicious circumstances during the will-writing process is not enough to successfully challenge a will – the circumstance in question has to have impacted the will-writing process enough to establish that the will does not accurately express the wishes of the will-maker.

    The doctrine of suspicious circumstances in BC is meant to ensure that will-makers have acted freely and voluntarily in their will-making process, and to prevent the enforcement of legally invalid wills. When writing a will, the will-maker’s lawyer is responsible for determining whether the will-maker had the mental capacity to distribute their estate in their will. Because of this, in court, there is a presumption of testamentary capacity unless there is evidence to suggest otherwise.

    Why Suspicious Circumstances are Important

    Suspicious circumstances can pass the burden of proof to the defendant.

    The presumption a will is valid can be rebutted by the existence of suspicious circumstances. The burden is initially on the person raising the suspicious circumstances, however, if the challenger can establish that suspicious circumstances interfered with the making of the will on a balance of probabilities – a likelihood greater than 50% – the burden will shift to the person propounding the will (the person asserting it is valid) to prove that the suspicious circumstance do not invalidate the will. This can include proving the will-writer had testamentary capacity, the will-writer knew of and approved of the contents of the will, or that there was no interference through fraud or undue influence during the will-writing process.

    In short, the existing presumption of validity is rebutted when suspicious circumstances arise. The defendant, usually the executor of the will, rebuts the suspicious circumstances claim by proving the will’s validity. 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.

    When Circumstances are Ruled Suspicious

    As described in the Supreme Court of Canada’s judgment in Vout v. Hay (1995), suspicious circumstances can be raised by:

    1. Circumstances surrounding the preparation of the will,
    2. Circumstances tending to call into question the capacity of the testator, or
    3. Circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

    Some scenarios which can provide evidence of suspicious circumstances during the creation of a will include:

    • Mental or physical deterioration of the will-writer,
    • Sudden changes to a will near the end of the will-writer’s life,
    • Sudden changes to a will which appear inconsistent with how the will-writer used to behave,
    • Significant involvement from beneficiaries during the will-writing process,
    • Gifts given to people who may have influenced the will-writer or to people which do not have a long-standing close relationship with the will-writer,
    • Recent husband or wife inheriting a majority of the estate,
    • Episodes of depression, anxiety, or drug abuse, and/or;
    • Significant dependency on a person who becomes a beneficiary;
    • Serious illnesses at the time of the will-writing.

    This is a non-exhaustive list of suspicious circumstances that can arise during will-writing. Depending on the situation and the person, circumstances can seem suspicious nearly anywhere. It’s up to the appellant to show that a suspicious circumstance interfered with the will-writing process – making the will invalid. From there, the defendant must prove the validity of the will.

    If you were victim to unfair estate distribution and you think suspicious circumstances lead to the creation of an invalid will – contact an experienced estate lawyer today to ensure you receive the estate that you’re entitled to.

    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.

  • Invalid Wills and Suspicious Circumstances: Knowledge and Approval

    Invalid Wills and Suspicious Circumstances: Knowledge and Approval

    A will must have knowledge and approval of the terms of their will in order for it to be valid. They must also have had testamentary capacity when drafting it. In BC, lack of knowledge or approval of a will is grounds for ruling the will invalid. The courts presume that a duly executed will is valid. When disagreements arise, people may wonder what knowledge and approval of a will really means.

    Essentially, the will-writer must understand the terms of the will, and they must know what they are signing. The will-writer must understand the general nature of what they are giving away. These are mandatory requirements for a valid will in BC. Some circumstances that may indicate the will-writer did not have the proper knowledge and approval of their will include:

    • Physical or mental handicaps restricting the ability to see or hear,
    • Language barriers,
    • Significant changes from previous wills in the final moments of the will-writer’s life,
    • Beneficiaries being heavily involved in writing the will,
    • Dependency on a beneficiary, physically and/or emotionally,
    • Isolation from close friends and family, or;
    • The will-writer not having read the will.

    Challenging a Will for Lack of Knowledge and Approval

    Knowledge and approval is only one requirement (of many) for a will to be valid.

    In BC, there is a presumption of validity for will-writers. This means that people who challenge a will must rebut the presumption. However, the burden of proof can be passed on to the defendant if the will-writer was unduly influenced or not aware of the terms of the will. Further, if a claimant can demonstrate suspicious circumstances surrounding the drafting of the will, the burden shifts to the defendant. Suspicious circumstances are circumstances where it is questionable if the will accurately expresses the mind of the will-writer.

    When suspicious circumstances arise, the defendant must prove that the will-writer understood and approved of their will. If the defendant can prove this, the court may rule the will valid, dismissing the challenge.

    Lack of Knowledge and Approval Example

    A common example of a client who may lack knowledge and approval of their will is an elderly, recent immigrant to Canada who is not fluent in English, or struggles with translation of legal language. A lawyer prepares their will, but they may not fully understand the will’s contents. Regardless, they proceed to sign the will when it has not been written exactly as they intended.

    A family member later chooses to challenge this will, bringing up the possible impact of the language barrier on the will-writer’s understanding of the document. The burden of proof is then on the executor of the will, not the challenging party, to prove that the will-writer understood and approved of the document regardless of the language barrier. Another important examples arises where the will-writer does not understand the nature and extent of property they are giving away.

    Reminders for Beneficiaries

    While in some cases it’s clear whether or not the will-writer understood and approved of their will, that is not always the case. There is no clear-cut definition for knowledge and approval, and it can be up to the defendant to prove the validity of the will in cases of suspicious circumstance. The circumstances, the will-writer’s previous wills, and even their behaviour and medical history can play an important role in determining to what extent knowledge and approval can be established.

    You can challenge a will if you believe you were wronged, especially due to a lack of knowledge and approval. Contact an experienced estate lawyer today to ensure you receive the estate that you’re entitled to.

    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.

  • Proprietary Estoppel: Broken Promises in Estate Planning

    Proprietary Estoppel: Broken Promises in Estate Planning

    Unfortunately, people break their promises, sometimes with vast consequences suffered by one party. In estate related matters, people can make life-changing decisions based on promises made to them. When a promise is made, but the promisor’s will says otherwise, or they simply change their minds, those who are victim to the broken promise may have reasonable grounds to challenge the estate.

    Elements of Proprietary Estoppel

    In BC, the courts will look for three elements in determining whether proprietary estoppel is evident or not:

    1. A promise is made,
    2. That promise was reasonably relied on, and
    3. Due to this reliance, the claimant suffered detriment when the promise was broken.

    These elements can seem awfully vague; however, we’ll analyze two different cases in BC to help establish the extent to which these elements must be satisfied.

    Will-Writer Said One Thing, the Will Says Another

    A successful broken promise claim or proprietary estoppel case will demonstrate all three of the above elements.

    The case of Sabey v. Rommel (2014) featured a farm employee, Sabey, who had a proprietary estoppel case when he was promised he would inherit the farm by the owner. In exchange, Sabey would be payed less for his work relative to the other employees on the farm. After the owner had passed away, her will specified that the farm was to be given to someone else. Sabey had a very close relationship with the farm owners as he lived on the farm, took horseback riding lessons on the farm and helped maintain the farm before the owners’ deaths. The court went through each of the three elements of proprietary estoppel in determining if the will should be modified to fix the broken promise.

    When deciding whether a promise was made or not, the courts examine whether an assurance or representation was made by the owner that the claimant will have some right to the property. The promise can be made simply through words or conduct and does not need to have the elements of a valid contract. As evidence, Sabey had an invalid codicil left by the owner stating that Sabey was to inherit the farm. The codicil was invalid because it was not properly witnessed. The courts determined that it was clear a promise was made with an assurance that Sabey would inherit the farm.

    Looking at the second element, the judge had to determine whether it was reasonable for Sabey to rely on this promise. Based on the invalid codicil evidence, it was clear that it was reasonable for someone in Sabey’s position to believe that they would inherit the farm. Further, the judge ruled that Sabey had in fact relied on this promise because it “altered his position or changed his course of conduct because of the assurance that he would inherit the farm.” Sabey had chosen not to pursue a professional dressage career path, got a job at a company near the farm and gave a significant amount of time and labour to maintain the farm because of this promise. This made it clear to the courts that Sabey had relied on this promise.

    The final element, detriment, was satisfied because through Sabey’s reliance on the promise and significant pay reductions, he suffered detriment when he did not inherit the farm in return. In essence, he was taken advantage of by relying on the promise.  In the end, the courts ruled that Sabey had a successful claim for proprietary estoppel and was entitled to receive $100,000 from the estate. Sabey’s years of underpaid/unpaid work were the only factors used for determining the equity that he should receive. His personal career choices did not warrant equity as per the judge’s decision – this is why Sabey did not receive the entire farm to remedy the situation.

    Promises Broken Between Beneficiaries

    The case of Cowper-Smith v. Morgan (2017) was argued before the 9 judges of the Supreme Court of Canada by League and Williams’ Darren Williams. This case featured proprietary estoppel between the beneficiaries of a will, not between a beneficiary and the will-writer. Two of the three children of the deceased established a promise wherein one of the sons, Max, would move back to the mother’s home to care for the aging mother until her death. The promise was that when the mother passes away, Max’s sister, Gloria, would sell her share of the estate home to Max. To further complicate the case, after their mother had died, Max and his brother were invalidly disinherited from the will altogether because of undue influence exercised by Gloria. In the end, the will was varied and each child received a third share of the estate, as was expected. For more detail on this disinheritance case, read our blog post here.

    After receiving his share of the estate, Max was still looking for legal remedy in regard to the broken promise made by Gloria. It was evident that after the promise was made to Max, he relied on the promise by moving back to Victoria, and suffered detriment by leaving his life in England because of this promise. The case debated whether it was reasonable to rely on the promise when there was not complete certainty that Gloria would own the one third share of the estate. Gloria argued that Max’s reliance on her promise was unreasonable because at the time the promise was made they could not know, with complete certainty, that that she would inherit her share of the estate. However, the court found that Max had acted reasonably in relying on the promise because he did so knowing, with reasonable certainty, that Gloria would inherit a portion of the estate home. Events which could have possibly interfered with Gloria’s inheritance of her share, which are unforeseeable in their nature, do not diminish the reasonable certainty that the estate would be executed as planned at the time the promise was made. In the end, the court ruled in favour of Darren William’s case on behalf of Max, and Gloria was forced to sell her share of the estate home to Max.

    In reviewing each of these two cases, we hope to bring light to those who have fallen victim to a broken promise in any estate related matter. If the elements of proprietary estoppel can be demonstrated before the courts, the broken promisor can be held liable, even in cases where a promise to the victim was made verbally.

    If you were victim to an estate related broken promise, contact an experienced estate lawyer today. We will ensure that you receive the inheritance that you’re entitled to, whether that is through a proprietary estoppel case 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.