Most individuals who take the time to plan their estate are better positioned to avoid disputes when they pass away.
However, there are no guarantees – and no legislating for the way loved ones or third parties may react to a will or other estate planning document.
Disputes may arise even before a will-maker’s death and estate litigation result. Wills and trusts are particularly susceptible to claims and litigation. These matters are often highly contentious and sometimes result in family rifts.
At Spectrum Family Law in Vancouver, we aim to resolve matters before they get to that stage. As experienced family lawyers, we are skilled in all aspects of law affecting families in British Columbia. Our estate litigation lawyers are highly experienced in resolving estate issues.
Many of these issues can be mediated or negotiated without the expense and the delays associated with a trial.
Whether you are a claimant or a personal representative defending the estate, we will protect your rights and provide skilled legal representation.
The main piece of legislation we refer to in B.C. for matters of the estate is the Wills, Estate and Succession Act (sometimes called “WESA”).
Estate disputes and litigation generally fall into three categories.
- Challenges to wills
Challenges to wills may be made for either of the following reasons:
- Technical grounds – the will does not comply with the regulations (e.g., it was not properly signed or witnessed)
- Substantive grounds –the testator lacked the mental capacity to make a will and/or was coerced by a third party into making or changing it (undue influence exerted).
- Will variation claims
Another common estate dispute arises when a will fails “to make adequate provision for the proper maintenance and support of the will-maker’s spouse or children”.
Under WESA, dependents of the deceased are entitled to “adequate” maintenance and support from a will. So, even if the will is otherwise valid but does not make this provision and is challenged, the court can intervene to make variations based mainly on the moral obligations of the will-maker and the legal rights of the parties in question.
This provision only covers spouses or children, who account for the majority of estate litigation cases in Vancouver. Common-law spouses, non-biological children or same-sex spouses may also make claims against the deceased’s estate.
“Resulting trust” claims in BC
Assets transferred before the will-maker died can also be the subject of estate litigation. These cases usually involve the transfer of property to a family member as a “gift”.
For instance, a piece of property (a house, vehicle, land, or money) may be transferred to an adult child as a gift. The common law in Canada says that with such a transfer, there is a presumption that the child holds this property in trust for the parent (this is termed “resulting trust”).
The child who received the property may need to prove that the transfer was a gift or release it as part of the estate when the parent dies.
Sometimes, the gift intent is made clear with careful estate planning. If it is not made clear, disputes and litigation can easily arise.
The above information outlines the types of disputes that arise with deceased estates. More specifically, the following types of cases are the most common ones that we handle in Vancouver:
- Inheritance disputes (under the provisions of WESA)
- Claims against executors
- Claims against trustees
- Contested trusts
- Claims of mental incapacity of a testator
- Guardianships and committees of estate
- Claims for unjust enrichment
- Inadequate support of a dependent
- Elder abuse
For a will to be valid in B.C., it must meet the following requirements:
- The will-maker must be 16 or over
- It must be in writing
- It must be signed by the will-maker
- Two witnesses (aged 19 years or older) must be present and sign the document at the same time
- The will-maker must be of sound mind, memory and understanding
These rules are made to avoid will disputes – though they still occur.
It should be noted that changes were made to WESA in recent years that allow for wills that do not meet the formal requirements to be recognized. This will apply only if the Court is satisfied that the document reflects the testamentary intentions of the deceased.
While emails, unwitnessed notes, homemade wills or video/audio recordings were previously not considered valid wills in B.C., the rules have been relaxed. If evidence can be provided that the will reflects the intentions of the deceased, the court may now accept it as valid.
To be sure that your assets end up where you intend and loved ones are adequately cared for, it is best to discuss your intentions with an estate planning lawyer as soon as possible.
Testamentary capacity is the capability of an individual to do the following:
- Understand that the purpose of the will is to distribute his or her property upon death
- Remember what property will be distributed by the will
- Remember the persons related to him or her
- Express an intelligent way to distribute assets
Spousal and child support claims against the estate in B.C.
In some cases, a person who has been ordered to pay spousal support or child support passes away and leaves the ex-spouse and their child(ren) in a compromised financial position.
There is no easy solution to this unless it is stated in the court order or agreement that the obligation to pay child and spousal support will continue upon death.
If no such provision exists, the surviving spouse needs to seek a court order that will force the estate to pay the ongoing support – sometimes at the risk of litigation from other claimants or creditors.
Estate litigation lawyers in Vancouver
An estate litigation lawyer at Spectrum Family Law in Vancouver is ready to listen to your situation and advise you of your options during an initial consultation.