BC UNFAIR WILL
BC UNFAIR WILL VARIATION LAWYERS
BC Unfair Will Variation Lawyers explain that: If you have been left out of a Will or feel you have been under-provided for, you can apply to the Supreme Court of British Columbia to vary a Will.
Working with a qualified Estate Litigation attorney like one of our senior BC Unfair Will Variation Lawyers can help you establish that the requirement of “adequate provision” and “proper maintenance and support” was not met and help ensure you receive all that you deserve.
Our skilled BC Unfair Will Variation Lawyers know many spouses are blindsided when they lose their spouse and then find out they have been inadequately provided for in the Will. Additionally, many children who were raised in close and happy family situations are often shocked to discover that they were left out of a parent’s Will.
A common strategy to save probate taxes AND prevent challenges to a Will is to plan to leave almost nothing in the estate on death. Our BC unfair Will variation lawyers can in some cases, successfully challenge those transfers on the basis of incapacity, undue influence or fraud, by arguing the transferred asset was promised to someone else, or in the circumstances the law presumes a loan instead of a gift amongst other strategies.
When transfers are successfully challenged, those assets are put back into the will-maker’s estate and subject to division and disposition.
BC UNFAIR WILL VARIATION LAWYERS 1-877-602-9900
Our BC Unfair Will Variation Lawyers explain that applying to Vary a Will is one way to contest it. The Wills Variation Act (“WVA“) and the Wills, Estates and Succession Act (“WESA‘) both allow the spouse or child of the deceased to contest a Will if he or she feels that the will does not adequately provide for him or her—and seek redistribution of the estate.
The Act allows the testator, (the person who creates the Will), to distribute property as he or she wishes, but ensures that he or she does not eliminate the legitimate claims of a spouse or children.
The WVA was repealed in March 31, 2014 and replaced by the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”) but the test under both acts is the same.
The key test for varying an unfair Will from WESA is section:
Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
There is a strict time limits of 180 days to file and serve the claim, so hiring a BC unfair wills variation lawyer immediately is crucial for you to have any chance to succeed on a claim that provision for you under the Will was inadequate and unfair.
DO YOU HAVE A BC UNFAIR WILL VARIATION CLAIM?
BC Unfair Will Variation claims under WESA section 60 can be brought by a married, marriage like relationship common law spouses, including same sex spouses and natural or adopted children of the Willmaker. The court will review the legal duty as well as the moral duty of the deceased Willmaker.
Pursuant to the Supreme Court of Canada decision of Tataryn, a Willmaker’s legal obligations, had he or she not died, arising under the BC Family Law Act, the federal Divorce Act, and the law of constructive trust are relevant factors in the assessment of the Willmaker’s legal obligations for the purposes of the Act. Click here for our blog on this point.
The test for success for adult children is more stringent and involves a number of factors. Click here for a detailed explanation of the test to vary an unfair Will by adult children.
IMPORTANT LIMITATIONS AND REQUIREMENTS TO CONSIDER WHEN CONTESTING A WILL
We repeat, you must do so within 180 days from the date of the grant of probate (the “grant of probate” is a legal process which once completed enables the Executor to collect and distribute the Deceased persons assets).
You must be considered an ‘eligible applicant’ or claimant, defined as:
- The surviving spouse, of the same or opposite sex
- The common-law spouse (in a marriage like relationship for at least two years prior to the death)
- The child of the testator, including adopted children but not step-children, (the testator is the person who creates the Will and who is now deceased)
You do not need to prove any particular financial hardship in order to successfully challenge a Will. The court will look at all circumstances of the Estate and the applicant when making a decision, i.e. size/value of the Estate, assets passed outside the Estate, the relationship between the claimant and deceased Willmaker, misconduct and as set out above how property would have been divided between spouses under family law property division and support rules etc.
Given the unprecedented size of British Columbian wealthy boomer estates the stakes in these cases are high.
PROPERTY COVERED BY THE WVA and WESA
- All real property (land and buildings) in BC, regardless of where the testator lived prior to his or her death;
- All personal property such as cash, securities, moveable assets, wherever located only if the testator lived in BC and intended to make BC his or her permanent home.
- Only assets that form the Estate are subject to the Act
Whether you have been completely disinherited, been given a nominal amount or have merely received a life interest in property, our BC Unfair Will Variation Lawyers and Estate Litigation lawyers can help you dispute a will and ask the Court to provide properly for you under the BC WVA and WESA.