As the cost of property continues to soar across British Columbia, inheritance disputes among family members are becoming commonplace.
According to a January 2018 IPC Private Wealth survey, 58 per cent of affluent Canadian respondents had not put in place a plan for the distribution of their estate, and a further 12 per cent do not plan on discussing their inheritance plan with their beneficiaries. This has created an environment where the contesting of wills is now common.
Estate Litigation in BC
Anyone creating a will in British Columbia is free to choose who will receive their personal property after they pass away. So far, so simple. However, this doesn’t stop family members from seeking legal action if they are unhappy with the terms of the will.
There are several common scenarios that exist in which this can occur:
- Divorce or re-marriage
- Family estrangement
- Changing nature of marriage-like relationships
- Trustee mishandling of an estate
- Elder abuse
As our ideals of what constitutes a family continue to evolve, we see changing notions of who should inherit between two siblings, and even who is considered a spouse.
This issue has become commonplace in the Lower Mainland due to our red-hot housing market. It has the potential to drive a wedge between families, and even litigation in some circumstances. At Westside Family Law, we understand that legal disputes over a person’s estate should be handled with expertise and sensitivity. That’s why we’re your experts for contesting a will.
Contesting a Will in BC
Under the Wills, Estate and Succession Act (WESA), wills in British Columbia can be changed in several ways, including:
- The will was improperly commissioned, meaning it was not signed or witnesses correctly
- There was undue influence, fraud, or coercion of the will maker
- The will maker did not have capacity to make the will – whether through an illness such as dementia or some other factor.
While individual family members may have issues with how the will was distributed, the law is clear in only allowing changes if one of the above bullet points isn’t satisfied. Furthermore, the Wills Variation process allows individuals one last shot at making changes. Let’s examine how it works.
Even if a will meets all of the legal obligations to be considered valid, spouses and children retain the right to apply to “vary” the will. Under the Wills, Estates and Succession Act, will makers have a moral responsibility to write a will that ensures there is proper maintenance and support for close family members. If a spouse or child believes they’ve been treated unfairly, they have the legal right to challenge the terms of the will.
Courts in BC will examine several factors in coming to a conclusion, including the size of the estate, the relationship between the will maker and the individual, and the individual’s current financial status. Unfortunately, these kinds of legal challenges can cause rifts between family members. On the one hand, you’ll have an aggrieved party who believes they’ve been wronged. On the other, you likely have a family member who is quite happy with how the will has played out in their favour. When resolving issues like this, it pays to have a family law expert in your corner.
Talk to a Family Law Expert
If you have any questions about estate law or challenging a will, the expert team at Westside is standing by to help. Contact us and we’ll be happy to assist.