Wills & Estate Litigation

South Coast Law in Surrey B.C. is experienced in estate litigation. We offer advice about inheritance claims and advise executors when an estate is being challenged. Our lawyers can assist in contesting a Will, or an inter vivos property transfer. We handle Wills Variation Act claims and Trust claims.

FAQs related to Wills & Estates:

Generally speaking, you are free to leave your estate to whomever you want. Only a spouse (including a common law spouse) or your children (including adult children) can contest your Will. They must apply to the Supreme Court of British Columbia within six months after the Will has been probated. If you disinherit a spouse or child, you need good reason and proof, or your estate may be vulnerable to attack.
In British Columbia, the Wills Variation Act states you must “adequately provide” for your spouse and children. Adequate provision is not defined in the statute. The courts will look at many details surrounding the estate such as the value of your estate, the needs of the spouse and children, gifts to the spouse and children during your lifetime and relationships between spouse and child. There are other factors as well. Each case is unique.
Under the Wills Variation Act only spouses and children can contest a Will. This includes common law spouses, same sex partners, and children, whether natural or adopted children.
Estate litigation can be expensive, but we offer an initial free consultation to obtain the facts to enable us to advise you on costs. In many cases, the client has the choice of either paying by the hour, or on the basis of a contingency fee. Some clients prefer contingency fees because this means that no legal fees will be paid unless and until monies are recovered.
The main reason to contest a Will is if you feel you have not been adequately provided for and the Will is not fair. In British Columbia only, spouse and children (including adult children) can contest a Will due to it being unfair. You may also contest a Will based on the view that the person making the Will (the Testator) lacked the necessary testamentary capacity, or the Testator was unduly influenced by someone or they were pressured to make the Will and it was not done by their own free Will.

Additional Things to Consider:

It is estimated that only a fraction of Canadians have wills. Although the cost of preparing and executing a proper will is, in most cases, under $500, many families have never given the matter proper consideration, and die “intestate”.
Without a will, the affairs and assets of the deceased are governed and divided by legislation.

Unfortunately, not every will is valid. Many wills (particularly “home-made” wills) fail to properly provide for family members. Under British Columbia law, a will that fails to adequately provide for a spouse and/or children can be challenged, in court, under the Wills Variation Act.

That Act permits the Court to adjust the will to insure fairness, based on moral and legal grounds. The relief is also available to “common law” spouses.

Variation Act. That Act permits the Court to adjust the will to insure fairness, based on moral and legal grounds. The relief is also available to “common law” spouses.

The Act does not specifically say what “adequate provision” means. Instead, courts are compelled to ascertain what is just and proper in all the circumstances. Although inequality in the division of the estate amongst several children may be unfair, being “forgotten” or entirely omitted from an estate often will.

Sometimes, a testator (the deceased) will have genuine and legitimate reasons for providing unequal benefits to various children. In some cases, that’s because one child has had the preferential benefit of gifts or loans during the lifetime of the deceased. In these cases, the testator may have left a greater share to the child who didn’t have those “inter vivos” gifts or loans, to offset any unfairness that would otherwise occur. Other times, the estate is divided unequally because of concerns about health, education, spending habits, or other considerations. If the provisions for unequal division are properly worded and documented, these provisions can be unassailable.

The reasons for a disproportionate division are many. If the inequality is significant, reasons for that should be set out in the will or a memorandum or other instrument (to provide “proof”, after the testator is gone). The reasons should, however, be rational and objectively sensible. Cutting a child out of a sizeable estate because the child smoked, or was gay or lesbian, for instance, would invite a court variation. On the other hand, a disinheritance based on a history of drug abuse by an estranged adult child may survive scrutiny. A troubled relationship between a parent and child will typically not justify an exclusion, particularly if the child has needs.

When “adult children” are “cut out” of an estate, other considerations apply. A close and careful review will also be merited where a testator has provided handsomely for a common law spouse, at the expense of needy children.

If a parent or spouse has failed to adequately address your needs in a will, early advice is key. The legislation permits a review by the courts only if action is commenced within six (6) months of probate. A failure to promptly inquire of your rights to entitlement may mean disappointment.

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