Estate and Wills Litigation

 

A will is a document which sets out how the testator’s assets are to be distributed on their death.  It is a legal document which, if properly drafted and executed, is capable of transferring all kinds of property, establishing trusts and changing beneficiaries’ lives for the better. Wills can also be instruments of great pain and hurt. Children may be disinherited or one child may be favored over another. British Columbians have the benefit of protections afforded by the Wills, Estate and Succession Act which permits certain individuals to contest a will where it can be shown the deceased failed to make adequate provision for them.

 

Who is able to apply to vary a will?

 

A will my be contested (challenged) on the death of the testator by either a spouse or a child of the deceased.  The term ‘spouse’ had evolved in law such that it is possible for an individual to die leaving more than one spouse eligible to challenge the will.  Any biological (or legally adopted) child of the deceased is also able to make a claim should they believe inadequate assets have been left to them under the terms of the will.

 

What are my chances of contesting a will and winning?

 

These types of claims are highly fact dependent – details matter.  There is also a tight time frame (or limitation period) within which a claim to vary a will must be started.  Unless there is clear evidence of a potential claimant being misled by the executor, this timeline is strictly followed by the court.

 

Statistically, of those wills variation claims that end up in court, there are more wills successfully varied than upheld.  The vast majority of claims however are settled out of court by mediation and/or negotiation.

 

How much will it cost me to challenge a will?

 

Litigation is expensive.  The costs incurred will depend on a variety of factors, not all of which will be under your (or your lawyer’s) control.  The conduct of all parties can have a large impact on the costs. There is a common misconception that all legal costs associated with will litigation are always paid from the estate – false!  An executor has a duty to defend the will and is likely to have their costs paid.  However, the executor has a duty to protect the assets of the estate.  Is the executor acting in the estate’s best interests by unreasonably prolonging litigation which eats up the value of the estate they are supposed to be protecting?

 

The question of costs – who pays how much and to whom – is ultimately at the discretion of the court. If a party to the action – executor (defendant) or claimant is found to have acted unreasonably, for example motivated out of spite, that individual is at risk of being ordered to bear their own costs, personally.

 

There has to be a reasonable risk-benefit analysis: you can’t spend $20,000 fighting over Granny’s pearls!  This analysis needs to be carefully and objectively considered before entering into litigation. There are always risks to litigation.  The prospects of success need to be evaluated by an experienced litigator and kept under constant review as new facts become known.

 

Most will litigation is funded on an hourly rate basis.  This means you will pay a retainer (a sum of money) up front for the lawyer to undertake the agreed work. For some cases it may be possible to offer a contingency fee.  A contingency fee means you pay nothing until the end of your claim. Your legal fee is paid from the assets you obtain as a result of the litigation. The portion of the estate being claimed needs to be of sufficient value to support a potential contingency fee. 

 

I want to contest a will.  What should I do?

 

Call us without delay.  There is a tight limitation period within which to start a court action.  Once this limitation period has passed, only the most extraordinary of circumstances could perhaps prove enough to get around this problem.  It is unwise to start costly litigation until you have a clear understanding of your chances of success.

 

The following is a short list of basic information required for an initial consultation to be set up:

 

  • The full names of the deceased, their spouse and the deceased’s biological and/or adopted children.
  • The date of death
  • A copy of the will (if available)
  • The name of the executor (if known)
  • Has the probate been granted? (Or have you as a spouse or child of the deceased received notice of the executor’s intention to apply for a grant of probate?).
  • Approximate value of the estate and what are the main assets which may fall within the estate?

Will Litigation

Principles of Varying a Will?

Principles of Varying a Will?

Principles of Varying a Will? Tataryn v Tataryn Estate, [1994] 2 SCR 807 is the leading wills variation case in BC in which the Supreme Court of Canada considered the grounds by which a court may vary a testator’s will in favour of a spouse or...

Who Can Sue on Behalf of the Estate?

Who Can Sue on Behalf of the Estate?

Who Can Sue on Behalf of the Estate? Section 151 of the Wills, Estate and Succession Act, SBC 2009,c 13 was amended and took effect on September 16, 2019. This section defines who, other than the personal representative of the deceased’s estate,...

Removing an Executor

Removing an Executor

Problems With An Executor? When To Remove An Executor In Burke v Burke, 2019 BCSC 383 (Burke), the British Columbia Supreme Court reviewed the applicable law and procedures concerning the removal and replacement of an executor and trustee on the...

Legal Standing of a Divorced Widow to Contest

Legal Standing of a Divorced Widow to Contest

How The Law Views Divorced Widows Divorced Widows Contesting A Will In the following case, the British Columbia Court of Appeal confirmed that a divorced widow of a deceased is not a spouse of the deceased for the purposes of the Wills, Estate and...

Admitting an Unsigned Copy of a Lost Will into Probate

Admitting an Unsigned Copy of a Lost Will into Probate

Can An Unsigned Copy of a Lost Will Be Probated? The Court May Consider a number of factors   If a Will is last known to be in the testator’s possession and cannot be found, the law presumes the testator destroyed the Will in order to revoke...

Testamentary Capacity: The Law Summarized

Testamentary Capacity: The Law Summarized

Capacity To Sign A Will. Who Decides? A Faltering Memory And The Viability Of A Will A will-maker must have the capacity to appreciate and understand the nature and extent of his or her property being disposed of, the persons who are the natural...

Spouse Legal Obligation Moral Obligation

Spouse Legal Obligation Moral Obligation

Legal Obligations and Moral Responsibilities To Surviving Spouses Surviving Spouses and Children: Do They Have Any Additional Rights? A testator typically has an obligation to make adequate provisions in his or her will for a surviving spouse and...

Loan or Gift in the Family Context?

Loan or Gift in the Family Context?

Outstanding Debt or Gift? The Difference Between A Gift And A Loan The purpose and intent of the advancement of money within the family context can become unclear very quickly when expectations are not defined. There are several factors for the...

Is it a Will?

Is it a Will?

Is The Will Valid? Non Formal Wills May Be Valid, Maybe Not A will-maker must comply with several requirements for a document to have a testamentary effect. However, the court has discretion to find a Will, or part of it, to be valid, despite...

Is Impaired Memory Equivalent to Testamentary Incapacity?

Is Impaired Memory Equivalent to Testamentary Incapacity?

Testamentary Capacity Was The Deceased Aware What He or She Was Doing? Testamentary capacity is not the same as the capacity to manage one’s own property and/or self. Testamentary capacity refers to a set of criteria in relation to the distribution...

Disinheritance

Disinheritance for Bad Behaviour – Part 2

Disinheritance for Bad Behaviour – Part 2

Disinheritance for Bad Behaviour - Part 2 The courts may be inclined to disallow the disinheritance of an adult child unless the allegations made by the deceased parent are valid and rationally connected with the decision to exclude the child. The...

Disinheritance for Bad Behaviour

Disinheritance for Bad Behaviour

Disinheritance for Bad Behaviour Section 60 of WESA makes it possible for the court to refuse a claim to vary a will made by a person whose character or misconduct, in the opinion of the court, disentitles him or her to such relief. In other words,...

Disinherited Due to Family Estrangement

Disinherited Due to Family Estrangement

Disinherited Due to Family Estrangement Disinherited Due to Family Estrangement In cases of a parent disinheriting an independent, adult child due to estrangement, the court will consider the role of the testator and his or her moral duty to that...

Probate Litigation

Who Can Sue on Behalf of the Estate?

Who Can Sue on Behalf of the Estate?

Who Can Sue on Behalf of the Estate? Section 151 of the Wills, Estate and Succession Act, SBC 2009,c 13 was amended and took effect on September 16, 2019. This section defines who, other than the personal representative of the deceased’s estate,...

Admitting an Unsigned Copy of a Lost Will into Probate

Admitting an Unsigned Copy of a Lost Will into Probate

Can An Unsigned Copy of a Lost Will Be Probated? The Court May Consider a number of factors   If a Will is last known to be in the testator’s possession and cannot be found, the law presumes the testator destroyed the Will in order to revoke...

Grant of Probate – Notifying the Common Law Spouse

Grant of Probate – Notifying the Common Law Spouse

Grant of Probate - Notifying the Common Law Spouse Grant of Probate - Notifying the Common Law Spouse It is important to provide notice of an application for a grant of probate to all persons entitled. While Rule 25-2(2) of the Supreme Court Civil...

Revocation of a Grant of Probate

Revocation of a Grant of Probate

Revocation of a Grant of Probate Revocation of a Grant of Probate Desbiens v Smith Estate, 2010 BCCA 394 is the leading case in British Columbia on the revocation of a grant of probate and was followed in Al-Sabah Estate, 2016 BCSC 1781. The basis...

Estate Litigation

Principles of Varying a Will?

Principles of Varying a Will?

Principles of Varying a Will? Tataryn v Tataryn Estate, [1994] 2 SCR 807 is the leading wills variation case in BC in which the Supreme Court of Canada considered the grounds by which a court may vary a testator’s will in favour of a spouse or...

Who Can Sue on Behalf of the Estate?

Who Can Sue on Behalf of the Estate?

Who Can Sue on Behalf of the Estate? Section 151 of the Wills, Estate and Succession Act, SBC 2009,c 13 was amended and took effect on September 16, 2019. This section defines who, other than the personal representative of the deceased’s estate,...

Disinheritance for Bad Behaviour – Part 2

Disinheritance for Bad Behaviour – Part 2

Disinheritance for Bad Behaviour - Part 2 The courts may be inclined to disallow the disinheritance of an adult child unless the allegations made by the deceased parent are valid and rationally connected with the decision to exclude the child. The...

Disinheritance for Bad Behaviour

Disinheritance for Bad Behaviour

Disinheritance for Bad Behaviour Section 60 of WESA makes it possible for the court to refuse a claim to vary a will made by a person whose character or misconduct, in the opinion of the court, disentitles him or her to such relief. In other words,...

Removing an Executor

Removing an Executor

Problems With An Executor? When To Remove An Executor In Burke v Burke, 2019 BCSC 383 (Burke), the British Columbia Supreme Court reviewed the applicable law and procedures concerning the removal and replacement of an executor and trustee on the...

Legal Standing of a Divorced Widow to Contest

Legal Standing of a Divorced Widow to Contest

How The Law Views Divorced Widows Divorced Widows Contesting A Will In the following case, the British Columbia Court of Appeal confirmed that a divorced widow of a deceased is not a spouse of the deceased for the purposes of the Wills, Estate and...

Disinherited Due to Family Estrangement

Disinherited Due to Family Estrangement

Disinherited Due to Family Estrangement Disinherited Due to Family Estrangement In cases of a parent disinheriting an independent, adult child due to estrangement, the court will consider the role of the testator and his or her moral duty to that...

Admitting an Unsigned Copy of a Lost Will into Probate

Admitting an Unsigned Copy of a Lost Will into Probate

Can An Unsigned Copy of a Lost Will Be Probated? The Court May Consider a number of factors   If a Will is last known to be in the testator’s possession and cannot be found, the law presumes the testator destroyed the Will in order to revoke...

Testamentary Capacity: The Law Summarized

Testamentary Capacity: The Law Summarized

Capacity To Sign A Will. Who Decides? A Faltering Memory And The Viability Of A Will A will-maker must have the capacity to appreciate and understand the nature and extent of his or her property being disposed of, the persons who are the natural...

Spouse Legal Obligation Moral Obligation

Spouse Legal Obligation Moral Obligation

Legal Obligations and Moral Responsibilities To Surviving Spouses Surviving Spouses and Children: Do They Have Any Additional Rights? A testator typically has an obligation to make adequate provisions in his or her will for a surviving spouse and...

Occupational Rent and Eviction Ordered for Stubborn Son

Occupational Rent and Eviction Ordered for Stubborn Son

Occupational Rent and Eviction Ordered for Stubborn Son Can Adult Children Continue Living in Parents Home? It is not uncommon that an adult child may still live in their parent’s home. In circumstances where that parents die, it can become...

Loan or Gift in the Family Context?

Loan or Gift in the Family Context?

Outstanding Debt or Gift? The Difference Between A Gift And A Loan The purpose and intent of the advancement of money within the family context can become unclear very quickly when expectations are not defined. There are several factors for the...

Is it a Will?

Is it a Will?

Is The Will Valid? Non Formal Wills May Be Valid, Maybe Not A will-maker must comply with several requirements for a document to have a testamentary effect. However, the court has discretion to find a Will, or part of it, to be valid, despite...

Is Impaired Memory Equivalent to Testamentary Incapacity?

Is Impaired Memory Equivalent to Testamentary Incapacity?

Testamentary Capacity Was The Deceased Aware What He or She Was Doing? Testamentary capacity is not the same as the capacity to manage one’s own property and/or self. Testamentary capacity refers to a set of criteria in relation to the distribution...

Grant of Probate – Notifying the Common Law Spouse

Grant of Probate – Notifying the Common Law Spouse

Grant of Probate - Notifying the Common Law Spouse Grant of Probate - Notifying the Common Law Spouse It is important to provide notice of an application for a grant of probate to all persons entitled. While Rule 25-2(2) of the Supreme Court Civil...

Revocation of a Grant of Probate

Revocation of a Grant of Probate

Revocation of a Grant of Probate Revocation of a Grant of Probate Desbiens v Smith Estate, 2010 BCCA 394 is the leading case in British Columbia on the revocation of a grant of probate and was followed in Al-Sabah Estate, 2016 BCSC 1781. The basis...