WILL & ESTATE
Vancouver BC Estate Litigation Lawyers at MacLean Estate Litigation act across British Columbia from 5 conveniently located offices in Vancouver, Surrey, Kelowna, Fort St John and Richmond. A significant portion of the estate dispute cases our Vancouver BC Estate Litigation Lawyers handle involve contesting or challenging a Will, usually initiated by a family member who does not agree with the contents of the deceased’s Will. Below are two common grounds on which a will may be challenged.
VANCOUVER BC ESTATE LITIGATION LAWYERS EXPLAIN VALIDITY OF A WILL IN BC
If you are wondering if a specific Will is authentic or binding in British Columbia (BC), you can formally challenge the validity of the Will under the Wills, Estates and Succession Act. The Wills Act was Repealed by the Wills, Estates and Succession Act, SBC2009, c. 13, s. 193, effective March 31, 2014 (B.C.) and new and more flexible rules are now in place for what qualifies as a valid BC Will. Call our Vancouver BC Estate Litigation Lawyers to get the answers you need quickly and efficiently.
Upon meeting these requirements a court will deem the Will to be valid unless someone brings forth allegations of a lack of testamentary capacity (mental ability) or undue influence (i.e. somebody forcing the testator to write and/or sign a Will). If either of these things are alleged, then an executor must prove that the testator had the requisite capacity to make a will and was not subject to undue influence. The rules for who must prove BC undue influence related to a bequest in a BC Will have dramatically changed as well.
WHAT IS UNDUE INFLUENCE REGARDING A BC WILL?
Vancouver BC Estate Litigation Lawyers explain that the classic definition of undue influence provided by the Supreme Court of Canada decision of Vout v. Hay states:
“Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean.”
NEW BC WILL RULES BY WESA IN FORCE
Our top rated* Vancouver BC Estate Litigation Lawyers want you to know that the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), sections 36-40 set out the new rules for Wills in BC:
- the will must be in writing and be signed at its end by the will-maker;
- the Willmakers signature must be made or acknowledged by the Will-maker in the presence of two or more witnesses who are both present at the time of signing by the Willmaker and witness must be age 19 or older;
- the age of the Willmaker is now 16 down from 19;
MARRIAGE NO LONGER REVOKES BEQUEST
Under s. 15 of the former Wills Act, if the BC Will-maker was married after making the Will and before WESA came into force (March 31, 2014), the will is revoked unless it stated it was made in contemplation of the marriage. If the will-maker married after March 31, 2014, the subsequent marriage does not revoke the Will. Contact one of our Vancouver BC Estate Litigation Lawyers today if you have questions.
DEFECTIVE BC WILLS CAN NOW BE FIXED!
Vancouver BC Estate Litigation Lawyers now tell potential clients that even if a BC Will doesn’t meet WESA requirements, it may be cured by court order that upholds the Will or a portion thereof. The courts and WESA seek to emphasize testamentary intent rather than demanding strict compliance with the statutory requirements.
Section 58 (3)
58 (3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person
Read this great blog by Lorne N. MacLean QC founder of our team of Vancouver BC Estate Litigation Lawyers to learn more about how this provision of WESA operates.
Vancouver BC Estate Litigation Lawyers want you to know that testamentary capacity encompasses two components:
- At the time of executing the Will, the testator understands the act of making a Will. Specifically, that he or she is intending to dispose of property effective on his or her death; and
- At the time of executing, (creating and signing) the Will the testator was free of mental disorder.
The law requires strict compliance with these basic requirements. Failure to abide by them will result in an invalid Will and defeat the original intentions of the testator.
In order to challenge a Will on any of the components noted above, a probate action must be commenced. The process of proving before a competent judicial authority that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine.
TIME LIMITS ON ESTATE LITIGATION IN BC
Section 61 of Wills, Estate and Succession Act (WESA) provides a 180 day time limit for commencing a proceeding to vary a will and requires notice to be provided to the executor within 30 days of the expiry of this 180 day period. Act immediately and without delay to prevent your claim being statute barred.
This time limit begins after probate is issued in a British Columbia Estate. Although the time limit is slightly longer for a claim of unjust enrichment or constructive trust, time is of the essence in all contested estates. Our firm also offers mediation and arbitration services in an effort to resolve disputes at an early stage.
POWER OF ATTORNEY
If a deceased person has signed over power of attorney, that person can sometimes abuse that power and make financial decisions that are not in the best interest of the family. Anybody who has been granted power of attorney has special duties required by law. The Courts view them as a Trustee who must not use the Power of Attorney for his or her personal benefit. If a person who has granted Power of Attorney fails to fulfill their fiduciary duty, we can file a breach of trust claim with the Courts that may then be used to recover assets.
Call Our BC Will and Estate Litigation Lawyers Toll Free 1-877-602-9900
If you are concerned about the validity of a Will, or wish to challenge its provisions we strongly recommended that you consult a Wills and Estate Lawyer in one of our Vancouver, Surrey, Kelowna, or Fort St. John offices to better understand your legal rights and obligations. Our experieinced BC Will and Estate Litigation Lawyers are here to help. Please feel free to contact us now.
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