Estate Disputes BC
We can not stop the pain of losing a spouse or parent,
but we can stop the pain of losing your share of the estate.
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Angela Price-Stephens Estate Litigation
Family disagreements are challenging, but there are legal avenues if you feel you have been treated unjustly. Angela Price-Stephens has been a trusted legal advisor for over 25 years. She is available to assist you with a wide variety of estate litigation matters including will variations, trust litigation, disputed probate matters, estate trust claims, abuse of powers of attorney, joint bank account and tenancy disputes.
Estate Disputes BC
In British Columbia challenges to a will are resolved in accordance with the Wills, Estate, and Succession Action (WESA). WESA has protected many rights of the will maker and the spouse and children of will-maker to challenge an unfair will. It also clarifies:
- What makes a document a valid will
- How a defective will may be fixed (or challenged)
- Who inherits if there is no valid will
- Provide the court more discretion to ensure the deceased’s last wishes are respected
- Introduces new law relating to undue influence
- Clarified an estate representative’s obligations regarding inherited property on Nisga’a and Treaty First Nations Land
- Complements the new Family Law Act relating to what constitutes a spouse and spousal variation claims
- Reduces the age for making a will to 16 years of age
While WESA provides greater flexibility for the court to interpret or fix a defective will to respect the testator’s wishes, WESA also potentially increases the opportunities to challenge a will.
There are strict time limits to challenge a will. Do not delay in speaking to an estate dispute lawyer to discuss your rights and how to protect your rights.
Will Disputes/Wills Variation
Losing a loved one is hard enough but when you find out that the will is not what you were expecting, or what you were told, the grief can be made so much worse. An unfair will or disinheritance can cause bitter feelings and indignation, sometime towards those you have loved. The ability to dispute or challenge a will in British Columbia is governed by the Wills, Estates and Succession Act. It imposes strict time limits to dispute an unfair will and governs who has the right to challenge the will. The will itself may be disputed as not being a valid will. There may be opportunity to have the will declared invalid such that a previous will is found to be ‘the last will’ or the deceased’s estate is distributed in accordance with the law as if there had been no will at all.
It is essential to act promptly and seek legal advice if you wish to consider challenging a will. It is essential that your potential claim is considered within the context of BC estate law and how these laws have changed in recent years. Please contact Miriam Pallmann on 205 869 1172 to schedule a call today.
Adult Committee/Guardianship Agreements
A Safe Choice or Last Resort?
When a loved one becomes incapable of managing their own affairs due to injury, illness or dementia and there is no Power of Attorney in place it may be necessary to apply to the Supreme Court of British Columbia to have a legal guardian appointed know as a committee.
Deciding whether to appoint a committee is a very important decision which has far reaching consequences. The individual adult will lose their decision-making capacity and will be considered a ‘non-person’ under the law. Once a committee is appointed it can be difficult to reverse.
Successfully appointing a committee affectively takes away an individual’s right to make decisions and gives those rights to the committee. This is fundamentally different to an Power of Attorney where one individual’s rights are given away by the donor to the power of attorney.
Before rights are taken away, there are fundamental questions the court must consider before appointing a committee. Is the individual incapable of managing his or her affairs? If the individual is incapable of making decision, does this incapacity extend to all areas of their life or specific areas only? If the court decides the individual is incapable, who is the best person to serve as their committee?
An application may be made by (usually) a family member to the Supreme Court to be appointed as a private committee under the Patients Act or the Public Guardian and Trustee can apply to become a statutory guardian (sometimes referred to as the public guardian). Private committee can be (a) Committee of Estate (which conveys decision-making to the committee regarding finances, property, and legal matters) or Committee of the Person (decision-making relating to personal care matters including medical care and end of life issues).
Disputes Relating to a Committee
Most trusted individuals who act under the terms of a representation agreement, a power or attorney or committee perform their role well and in the best interests of the incapable person. However, disputes typically arise where one family member who applies for the committee is not considered suitable by other family members. This may result in a disputed committee application. A person appointed to act as committee may abuse their financial power, abuse the individual subject to the committee and act against the best interests of the vulnerable individual. An inappropriate purchase or contract entered into on behalf of the vulnerable person may need to be set aside, or otherwise challenged, if it was not in the best interests of the vulnerable adult. The vulnerable adult themselves may dispute their need for a committee. This can be a challenging situation where the adult, subject of the committee, is no longer considered a person in their own right and not capable of making their own decisions or retaining professional assistance.
If you are in need of assistance in deciding whether a committeeship is required, an option, or you have questions on the process of obtaining committeeship we are here to assist. We also deal with financial elder abuse by committees and those acting under a power of attorney.
ESTATE DISPUTES BC
Power Of Attorney
Granting a Power of Attorney (POA) to someone you trust gives them considerable power over your property and finances, depending upon the nature and terms of the power. While most attorneys act in the best interests of the donor of that power, some do not. Abuse of a POA is the misuse of by the attorney of the authority granted by the donor. This could include doing something which is against the donor’s best interests such as spending the donor’s money for the attorney’s benefit. It may also include coercing an individual to sign a POA against their wishes or forging an individual’s signature.
There are many types of POA available. Some are limited to deal with a specific transaction on behalf of the donor. Others are all encompassing and remain in effect after the donor has lost capacity. The attorney has a legal duty to act in the donor’s best interests and to take into account the wishes of the donor.
The POA is given to the attorney while the donor is competent. It may be taken away, or revoked, at any time as long as the donor is competent to do so.
If you suspect a POA is being abused it is essential to take steps as soon as possible to limit the damage and stop the abuse. There are steps that may be taken to hold the abuser responsible for the losses or theft either through the civil or criminal courts. If you need assistance or would appreciate a free consultation, please contact Miriam Pallmann on 250 869 1172.
Elder Abuse Law
Elder Abuse is a deliberate mistreatment of an adult and may include physical, emotional or sexual harm, neglect or abandonment by anyone where there is a reasonable expectation of trust. It typically involves financial exploitation or abusive financial control such as denying the abused adult access to their own funds.
A typical example is misuse of money by an adult child from an elderly parent by emotional or physical threats or by misrepresentation, fraud and deceit. A child may borrow money will no intention of returning the funds hoping the “loan” will never be found out. The law in British Columbia actually presumes that the transfer of money from a parent to an adult child is a loan, to be repaid, until proven otherwise. Similarly, the transfer of money by a parent to a minor child is presumed to be a gift, unless evidence is to the contrary.
It is important to protect yourself from later claims of abuse or theft or to protect your loved one from such claims by seeking the advice of an estate lawyer.