Our Estate Litigation Lawyers in Vancouver and Surrey are intimately familiar with all issues that arise within and outside a family. Estate litigation is really an extension of family law in some aspects. Family lawyers who also practice estate litigation are best suited to deal with estate issues as they have expertise in both areas of these laws, which ultimately concern a family.

When dealing with a family law issue, everyone is alive and can speak for themselves. When dealing with estate litigation, one or more people are dead and cannot speak for themselves. So the Estate would have to either sue or defend against claims relating to the deceased.

Common Estate Litigation issues in British Columbia are as follows:

Wills Variation Claims | Children or Spouse Left out of a Will or Disinherited

The majority of Wills Variation Claims happen either through biological children of the deceased, or his or her spouse.

In most situations, common law spouses, non-biological children or same sex spouses can make claims against the deceased’s Estate as well.

Under the rules of the Wills Estates and Succession Act (“WESA”), a Will can be challenged on the following grounds:

1. Technical Grounds; and
2. Substantive Grounds

Varying Wills on Technical Grounds

WESA requires Wills to be signed by the Will-maker and be witnessed by at least 2 people:

• The Will maker must be over the age of 16;
• The witnesses must be over the age of 19;

However, in some circumstances, unsigned or unwitnessed Wills may still be upheld as long as they reflect the testamentary wishes of the Will maker, in addition to meeting some other conditions.

Each case that challenges a Will on technical grounds is unique and fact-specific. Therefore, it is always advisable to have a consultation with a Wills and Estates Lawyer to fully understand your rights an obligations, whether you want to uphold the Will or to challenge it.

Varying Wills on Substantive Grounds

Varying Wills on substantive grounds is the most common form of Wills variation claims. Examples of challenging Wills on substantive grounds include:

• The Will maker did not have the mental capacity to form a decision or was subject to undue influence or pressure from someone;
• The Will maker did not properly allocate his estate to his spouse or children;
• The Will maker left out one or more of his children or spouse from his or her estate for no good or proper reason;

In order to challenge a Will based on lack of mental capacity, the main test is to show that the Will maker was vulnerable, dependent and under the influence of a child or spouse who exercised force, pressure or manipulation to obtain a larger share of the deceased estate.

In order to challenge a Will based on unfairness or unequal division between spouse and/or children, the courts consider some or all of the following factors:

• The need of the children and/or spouse who is challenging the Will;
• Did the children/spouse contribute to the estate or are they dependent on the estate?;
• The reasons for why the Will maker did or did not leave his/her estate to one or more children/spouse;
• The size of the estate; and
• Other factors.

Resulting Trust Claims Upon Death

Under British Columbia law, if a parent transfers an asset to an adult child, the presumption of resulting trust occurs. This means the transfer is presumed to be a ‘trust transfer’ meaning the recipient or the adult child holds the property in trust for the parent.

For example, if a child is 25 years old and his/her parent transfers a house to the child’s name, the presumption is that the house really belongs to the parents and not the child. If the child wishes to prove that the transfer was intended to be a gift, then the child has the responsibility to prove it. Many parents transfer their assets to their children for tax, management and other purposes but do not mean to give the actual asset to the children, hence why the presumption of resulting trust occurs.

Upon death of a parent, his or her estate can actually sue the child who is holding the legal interest of the house, arguing that the beneficial interest really belongs to the deceased’s estate which intended to have someone else be the owner of the asset. An example is the spouse of the deceased suing the child whose name is on the house and ask for the house to be reverted to the estate so that the spouse, as the beneficiary of the estate, can obtain the house.

In these cases, the intention of the person making the transfer is very important to prove. These cases require expert and specific knowledge of resulting trust laws and a close examination of the circumstances surrounding the transfer.

If you are dealing with a resulting trust claim, it is crucial to speak with a trusts lawyer to better understand your rights and obligations. Call us at 604-974-9529 or get in touch.

Rights to Spousal Support or Child Support Against the Estate

A family lawyers, we commonly deal with situations where two people are separated, one is supposed to receive child support and spousal support, but the payor suddenly dies. In these situations, a very real and concerning question arises: is the estate of the deceased liable to continue paying child and spousal support? 

The answer to this question is extremely complicated. The courts are hesitant to determine this issue given the uncertainty of what can happen to Estate, including getting sued by creditors or enough money being left to pay out child or spousal support.

The best option is always to include in any court order or agreement that the obligation to pay child and spousal support will continue upon death. If you do not have such agreement, you will need to seek a court Order. Our family lawyers at Ylaw have expertise dealing with this issue. Call 604-974-9529 or get in touch.

YLaw Lawyers Deal with the Following Wills and Estate Disputes:

At YLaw our family and estate litigation lawyers deal with numerous types of family and Wills and Estates disputes. Some of the types of cases we handle are as follows:

• Elder Abuse;
• Inheritance disputes;
• Incapacity to make a Will;
• Committeeship Applications of a person;
• Guardianship or Committee of the Estate;
• Claims against Executors;
• Claims against Trustees;
• Patient Property Act Claims;
• Claims for constructive trusts;
• Claims for unjust enrichment;
• Claims for Express trusts;

If you are thinking of challenging a Will or want to uphold it, contact our award winning Estate litigation lawyers by calling 604-974-9529 or get in touch.