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...

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...

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...

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...

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.