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Estate litigation is an area fraught with complexities and emotional challenges, particularly when disputes arise regarding the distribution of a loved one’s assets. One common legal remedy available in British Columbia is the Will Variation Claim, governed by the Wills, Estates and Succession Act (WESA). This guide explains what Wills Variation Claims entail, common types of estate litigation, and why professional legal advice is crucial.
A Will Variation Claim allows spouses or children who feel inadequately provided for or unfairly excluded from a will to challenge it in court. British Columbia law recognizes that a deceased person has moral and legal obligations to certain family members, and failing to meet these obligations can result in a successful challenge.
Under WESA, if a will-maker dies leaving a will that does not make "adequate provision for the proper maintenance and support" of their spouse or children, the court has the power to change (or "vary") the will.
Only spouses (married or common-law) and children (biological or legally adopted) of the deceased.
Did the will-maker meet their legal and moral obligations to provide for their spouse and/or children? The court considers factors like the claimant's needs, the size of the estate, the relationship history, and contributions made.
This is a classic scenario leading to a Wills Variation Claim. Simply being left out or receiving a disproportionately small share compared to others or compared to the claimant's needs can trigger this type of action.
It's crucial to know that a Wills Variation Claim must be filed within 180 days of the Grant of Probate being issued. Missing this deadline usually means losing the right to claim.
Sometimes, the dispute isn't about the fairness of the distribution, but about whether the will itself is legally valid. Common grounds include:
The will-maker must have understood they were signing a will, known the nature and extent of their assets, and appreciated the claims of potential beneficiaries they ought to provide for. Conditions like dementia, severe illness, or certain mental health issues at the time the will was signed can raise capacity concerns.
This occurs when a person in a position of power or trust improperly pressures or coerces the will-maker into making or changing their will in a way that doesn't reflect the will-maker's true wishes. Proving undue influence often requires demonstrating manipulation, coercion, or abuse of trust.
WESA sets out specific rules for how a will must be signed and witnessed. For instance, the will generally must be in writing, signed at the end by the will-maker in the presence of two witnesses, who then sign in the presence of the will-maker. Errors in this process (e.g., a beneficiary acting as a witness, missing signatures) can invalidate the will or specific gifts.
Claims that the will document itself is fake or was signed as a result of outright deception.
The executor (now formally called the "personal representative" under WESA, though "executor" is still commonly used) has a duty to administer the estate according to the will and the law. Disputes can arise regarding:
Challenges to the suitability of the named executor (e.g., due to conflict of interest, incapacity, or dishonesty).
Beneficiaries may take issue with how the executor is managing the estate, alleging delays, mismanagement of assets, improper fee claims, or failure to account. In serious cases, beneficiaries may apply to have the executor removed and replaced.
Beyond the above, litigation can also arise from:
Sometimes the wording of the will is ambiguous or unclear, requiring the court to interpret the will-maker's intentions.
A person (often not a spouse or child) might claim they contributed significantly to the deceased's assets (e.g., through unpaid labour, financial contributions to property) based on a promise or expectation of inheritance, and it would be unjust for the estate to retain that benefit without compensating them.
Individuals or entities owed money by the deceased may make claims against the estate.
Estate litigation typically starts with filing a Notice of Civil Claim in the Supreme Court of British Columbia. The process often involves:
Pleadings: Formal documents outlining the claim and the defence.
Document Discovery: Exchange of relevant documents between the parties.
Examinations for Discovery: Questioning the opposing parties under oath.
Mediation: Many estate disputes are resolved through mandatory or voluntary mediation, a facilitated negotiation process.
Trial: If mediation fails, the case proceeds to a trial where a judge hears the evidence and makes a binding decision.
Estate disputes are complex and emotionally taxing. The legal rules and procedures, especially the strict time limits for Wills Variation Claims, require careful navigation. Whether you are considering challenging a will, defending against a claim, or are an executor facing difficulties, seeking advice from a lawyer experienced in BC estate litigation early on is essential to protect your rights and understand your options.
DT Law’s experienced estate litigation lawyers are prepared to guide and represent you through every stage of your wills variation claim, protecting your rights and interests.
Disclaimer: This blog post provides general information only and does not constitute legal advice. Laws and interpretations can change. Consult with a qualified legal professional for advice specific to your situation.
Contact us today to schedule your initial consultation with one of our lawyers.
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