Estate 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.

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...

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...

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...

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,...

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...

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...

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...

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...

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...

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...

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...

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...

Angela Price-Stephens

is a British and Canadian lawyer with over 25 years of successful litigation experience and has built a reputation as a strong litigator in some of the most complex and challenging areas of litigation. She is known for her defense and prosecution of claims of will and estate disputes. For More Details visit: https://estatedisputesbc.com/  or call Miriam Pallmann 250 869 1172 to schedule a call.