Estate disputes in British Columbia, Canada, can arise for various reasons, and they typically involve disagreements or conflicts related to the distribution of assets and property after someone passes away. Some common types of estate disputes in British Columbia include:
Will Challenges: These disputes occur when one or more beneficiaries or interested parties believe that the deceased person’s will is invalid or was made under undue influence, lack of mental capacity, fraud, or other improper circumstances.
Interpretation of Wills: Disagreements can arise when the language in a will is unclear or open to different interpretations, leading to disputes about the intended distribution of assets.
Variation of Wills: British Columbia’s Wills Variation Act allows spouses or children of deceased individuals to challenge a will if they believe they were unfairly treated by the deceased’s distribution of assets, seeking a court-ordered adjustment to the will’s provisions.
Executor Disputes: Executor disputes may occur when the person named as the executor of the estate faces challenges or allegations of mismanagement, fraud, or failure to fulfill their duties properly.
Joint Property Disputes: Disputes can arise when assets or property are jointly owned, especially if there is a dispute over the ownership share or if the co-owners have conflicting claims.
Trust Disputes: Disputes involving trusts can occur when there are disagreements about the administration or distribution of assets held in trust, whether created during the deceased’s lifetime or by the terms of the will.
Estate Administration Disputes: These disputes may involve challenges to the actions or decisions made by the executor or trustee during the estate administration process.
Debt claims: Creditors of the estate may bring claims, seeking what they believe is owed to them.
To initiate a variation claim, the eligible individual must file a Notice of Civil claim within 180 days of the issuance of the grant of probate or administration and serve it within 30 days after it is filed.
To successfully challenge a will, the claimant must establish that the deceased’s will fails to make “adequate provision” for their proper maintenance and support. This typically means that the provision made for the claimant is not reasonable in the circumstances. It’s important to note that the court considers a variety of factors in determining adequacy, including the claimant’s financial needs, the size of the estate, and the moral obligations of the deceased.
Undue influence is a legal concept that can affect the validity of a will or transfer of property. It refers to a situation where someone exerts pressure or influence on another person to make a decision that is against their true wishes or best interests. This pressure can be exerted by anyone with a relationship of trust or dependence with the person making the will or transfer, including family members, friends, and caregivers.
In British Columbia, the law of undue influence is governed by the Wills, Estates and Succession Act (WESA) and the common law (court decisions). According to Section 52 of WESA, a court may declare a will or a part of it invalid if it is satisfied that the will-maker was subject to undue influence by another person.
The common law has also recognized a presumption of undue influence in certain situations where there is a relationship of dominance and dependence between the parties, such as solicitor and client, physician and patient, parent and child, guardian and ward, trustee and beneficiary, priest and penitent, or caregiver and care recipient. In these cases, the person who benefits from the will or transfer must prove that there was no undue influence and that the person making the will or transfer acted freely and voluntarily.
To prove undue influence, it is not enough to show that the person making the will or transfer was influenced by another person’s suggestions or persuasion. The influence must be so significant that it overpowered the person’s own wishes and judgment. Some factors that may indicate undue influence are:
Lack of capacity, or testamentary capacity, is one of the legal grounds for contesting a will. It means that the person who made the will (the will-maker) did not have the mental ability to understand and carry out their wishes in a valid will.
The legal test for testamentary capacity has evolved from the 1870 English case Banks v Goodfellow. The test created by this case says that a will-maker must be able to do the following things:
This is sometimes called having a “disposing mind and memory”.
This test was restated in the 2019 British Columbia case Halliday v. Halliday Estate as requiring the propounder of the will to establish that the will-maker:
To create a valid will, the will-maker must possess testamentary capacity for the entire will or any part of it. The test for testamentary capacity requires that the will-maker be able to appreciate the Banks v Goodfellow factors “in relation to each other”. This means that the will-maker must have a clear and consistent view of their whole estate plan. The will maker cannot make a valid will if they only understand some parts of the will and not others. However, if the will-maker had knowledge and approval of their will, but not of a specific part of it, the court may decide to remove only that portion that was not known or approved.
Knowledge and approval is different from testamentary capacity. It means that the will-maker actually understood what they were doing and its effect when they made their will. It is possible for a will-maker to have testamentary capacity but not knowledge and approval, or vice versa. For example, a will-maker may have been tricked or coerced into signing a will that they did not read or understand, or they may have forgotten or changed their mind about some parts of their will after signing it. If a person lacks the mental capacity to make a will at the time of making it, then the entire will is usually invalid.
The burden of proving testamentary capacity lies with the person who is seeking to uphold the will, unless there are suspicious circumstances that cast doubt on the validity of the will. Where a will has been duly executed with the requisite formalities pursuant to s. 37 of the Wills, Estates and Succession Act, a rebuttable presumption of capacity arises, which presumes that the will-maker knew and approved of the contents of the will. Suspicious circumstances may include factors such as the will-maker’s age, health, mental state, or relationship with the beneficiaries or witnesses. If suspicious circumstances are present, the court may require additional evidence to confirm that the will-maker had capacity, such as medical records, expert opinions, or witness testimonies.
This webpage is not legal advice and should not be treated as a substitute for consulting a lawyer. It’s important to note that estate law can be complex, and resolving these disputes often requires legal assistance. Parties involved in estate disputes in British Columbia may seek resolution through negotiation, mediation, or litigation in the British Columbia Supreme Court or the British Columbia Court of Appeal, depending on the circumstances and the nature of the dispute. Consulting with an experienced estate lawyer is advisable when facing such disputes.
