Estate Litigation & Disputes

Estate Litigation & Disputes

At Cote & Evans Trial Lawyers, we know that conflicts can often arise during the estate administration process and we understand that these conflicts can be stressful as they impact important personal relationships. The lawyers at Cote & Evans Trial Lawyers are experienced in negotiating, mediating and when necessary, litigating these estate matters to ensure that any disputes are resolved in a comprehensive and timely manner.

We provide the following services in relation to estate litigation or disputes:

  • Applying to vary Wills due to concerns regarding fairness and/or validity of the Wills;
  • Claims related to the disinheritance of a spouse or child(ren)
  • Claims related to the unfair practices of an executor, trustee or professional agent;
  • Claims related to undue influence or testamentary incapacity
  • Disputes regarding Committeeship applications; and,
  • Representing executors who are facing wills variation claims or other, related disputes.

Who Can Apply to Vary a Will?

In British Columbia, applications to vary a Will are dictated by the Wills, Estates and Succession Act (“WESA”) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01. Under WESA, only the deceased’s spouse or children may make a claim to vary a Will if they feel that the Will does not provide for them in a fair manner.

Under WESA, a person is considered a spouse if you are married and if you are unmarried, you are also considered to be a spouse if you lived in a marriage-like relationship for at least two years before the Will-maker’s death. You are considered to be a child for the purpose of making a Wills variation claim if you are the biological child of the deceased or if you were legally adopted by the deceased.

If you are a friend, relative, employee or any other person, other than a spouse or a child, you cannot apply to vary a Will because you believe it is unfair. However, if you are a person other than a spouse or child, you can challenge the Will in other ways.

How do I Apply to Vary a Will?

In British Columbia, there are timelines to keep in mind if you wish to challenge a Will. A claim to vary a Will must be started within 180 days from the date that the grant of probate or administration is issued by the court. However, if you are looking to challenge a Will because you think the Will-Maker lacked capacity or was pressured into making the Will, then you have two years from the date that you discovered that you may have a claim.

Although the most common avenue to vary a Will involves making an application to the BC Supreme Court to do so, you may also wish to engage in mediation with the other parties in order to reach an agreement without going to court. Mediation can be especially important when you wish to preserve close, personal relationships and the lawyers at Cote & Evans Trial Lawyers are experienced in settling matters outside of court.

However, the lawyers at Cote & Evans Trial Lawyer are also well versed in estate litigation and can assist you in the often complicated process of applying to the court to vary an unfair or invalid Will. Given the strict timelines surrounding Wills variation claims, it is important to get sound legal advice in a timely manner.

Contact us at 778-395-6200 or email us at reception@coteevans.ca for a free 30 minute consultation.

What if a Spouse or Children are Disinherited in a Will?

In BC, when a spouse or children are disinherited from a Will, they can apply to the court to vary the Will on the basis that the Will is unfair and does not adequately provide for them.

This can be a complex process as the court will require evidence to prove the following factors:

  • The nature of the deceased’s relationship with the spouse or child;
  • Whether the spouse or child provided care for the deceased;
  • Whether the deceased gave the spouse of child significant assistance or gifts during their life;
  • Whether the spouse or children are receiving any assets outside of the estate;
  • Misconduct on the part of the spouse or child;
  • Promises made to the spouse or child by the deceased;
  • Whether the deceased’s intentions in the will seem rational;
  • The financial circumstances of the spouse or children;
  • Whether the spouse or children were financially dependant on the deceased; and
  • The size and nature of the estate.

The lawyers at Cote & Evans Trial Lawyers are skilled advocates who can assisting you in gathering and presenting this evidence in a persuasive manner to the court.

What if the Will-Maker did not have Capacity or Was Unduly Influenced into Making the Will?

Under section 36 of the Wills, Estates and Succession Act, https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01#section36 a person who is over 16 years of age and who is mentally capable can make a Will.

A person who makes a will must:

  • Understand that they are making a Will, which is a legal document;
  • Understand that the Will determines what happens to their personal property after they die;
  • Understand the value of the property that will be distributed per the Will;
  • Understand how the Will will distribute their property after they die; and,
  • Understand the potential consequences of not providing for their spouse or children, if they have a spouse or children.

If you believe that the deceased person did not have the mental capacity to make a Will or was pressured into making a Will, the spouse, children or any other party who believe they should benefit from the deceased’s estate may apply to the court to vary the Will.

Under section 52 of the Wills, Estates and Succession Act,https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01#section52  you may apply to the court to vary the Will if you believe that a person who had any time of influence over the deceased and used that influence to force the deceased to make the Will or a provision of the Will.

The person who is accused of exercising undue influence then has the burden of proving that they did not exercise their power to unduly influence the deceased into drafting the Will or a provision of the Will.

If you believe that the deceased person lacked mental capacity or was unduly influenced when they made their Will, we encourage you to contact us in a timely manner at 778-395-6200 for a free 30-minute consultation.

Claims Against Executors

If you are the executor of an estate and are facing a legal claim brought against you or the estate by one of the beneficiaries of the estate or by a third party, the lawyers at Cote & Evans Trial lawyers are able to provide you with the following services:

  • Advising you on laws and procedures surrounding estate administration generally;
  • Advising you regarding the validity of the Will;
  • Drafting and submitting documents to the court on your behalf, as necessary;
  • Liaising with other professionals such as accountants and other financial experts, as necessary;
  • Assisting you in passing your accounts before the court; and,
  • Representing you in court for any estate litigation matters.

In certain cases, you may be able to recover your legal costs from the estate itself at the conclusion of a matter. For executors wishing to receive estate litigation advice, please call 778- 395-6200 or email us at reception@coteevans.ca to set up a free 30-minute consultation.

How Do I Remove an Executor?

Under British Columbia law, executors, trustees or other professionals who are responsible for dealing with an estate must do so diligently, responsibly and in a manner that is in the best interest of the beneficiaries of the estate.

If you are a beneficiary of a Will and believe that the executor or trustee is exercising their power in an inappropriate manner, you have the option of dealing with the matter outside of court by attempting to resolve the issue through alternate dispute resolution (“ADR”) methods such as mediation or arbitration. The lawyers at Cote & Evans Trial Lawyers are well versed in the practice of ADR and the laws surrounding the duties and obligations of an executor and can guide you through this process.

However, if ADR is not the appropriate way to resolve your issue, you may wish to make an application to the BC Supreme Court to remove the executor from his position and for the court to appoint a new administrator for the estate. To be successful in this application, you will have to provide evidence to the court that the executor has:

The lawyers at Cote & Evans Trial Lawyers are skilled advocates who can assisting you in gathering and presenting this evidence in a persuasive manner to the court.

  • Endangered the trust property/estate,
  • Demonstrated dishonesty; or
  • Demonstrated incapacity to handle affairs of the estate;
  • Demonstrated a lack of reasonable good-faith.

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