Estate litigation can be many things. It can be stressful and emotional. It can be time-consuming and costly. Many hope to avoid the litigation process altogether. But the bottom line is that in some situations, estate litigation is absolutely necessary to secure justice and ensure that a loved one’s final wishes are respected.
You don’t have to navigate the estate litigation process alone. Instead, seek guidance from a capable and experienced lawyer at Onyx Law Group. We provide trusted legal advice and clear, effective strategies for dispute resolution.
Estate litigation can be used to address a variety of issues. In today’s blog post, we will have a look at common types of estate disputes, the parties involved, and the process you can expect to resolve disputes. We’ll also discuss ways to avoid estate litigation.
What is Estate Litigation in British Columbia?
The property left behind by a deceased person is called their “estate.” A deceased person’s estate typically includes real estate, assets like bank accounts, investments, vehicles, and other personal belongings. When a dispute arises over a deceased person’s estate, estate litigation may be necessary to enforce a right or claim to the estate.
What else does estate litigation cover?
Estate litigation can be used to address a broad range of issues. Assets such as RRSPs, insurance proceeds, and trust property pass outside of a deceased person’s estate. Disputes about the true ownership of these types of assets are dealt with in estate litigation matters. Challenges to gifts or property transfers made during the lifetime of a deceased person can, too.
Estate litigation also covers disputes relating to Powers of Attorney, Representation Agreements, Trust Deeds, valuation of estate assets, misappropriation of assets, and myriad other issues relating to the administration of the deceased’s estate (for example, a claim to remove an executor; a claim challenging executor’s fees). When probate matters become contentious, estate litigators draw upon their litigation experience to obtain court orders needed to administer the estate of a deceased person.
How to Avoid Estate Litigation Before a Loved One’s Death
Proper estate planning is the best way to avoid estate litigation. A comprehensive estate plan that clearly articulates a person’s wishes, that is updated regularly, and that is prepared with the assistance of an experienced estate lawyer goes a long way toward reducing the potential for legal challenges.
The main objective of an estate planning lawyer is to structure affairs to transfer the maximum amount of wealth to a person’s chosen beneficiaries with the least amount of delay, while also protecting against the possibility of a legal challenge. We have a team of highly skilled estate law lawyers who can help create a comprehensive estate plan that incorporates planning for future incapacity to ensure that financial, legal, and healthcare issues can be appropriately managed.
Our estate planning lawyers regularly assist clients with the preparation of Wills, Representation Agreements (for health care), Powers of Attorney, family trusts, disability trusts, Alter Ego Trusts and Joint Partner Trusts, and other estate planning tools.
How to Avoid Estate Litigation After a loved one’s death
If a problem or issue arises after a loved one’s death, it may be possible to reach a resolution through direct negotiation with the interested parties, usually with the help of a trusted estate lawyer. But the reality is that it will likely be necessary to start estate litigation proceedings. As mentioned above, that does not foreclose the possibility of settling issues after proceedings have been commenced, through informal negotiations or structured mediation. In other words, while you may not be able to avoid starting litigation, you may still be able to avoid having to go to trial to reach a resolution.
The Estate Litigation Process
The estate litigation process involves complex court procedures which can vary depending on the nature of the claim. An experienced estate litigation lawyer can explain the specific process and procedures relating to your particular claim. Here is a general overview of the steps in the process:
- Understand the viable grounds for bringing estate litigation. In British Columbia, the grounds for estate litigation are limited and specific criteria must be met to have a claim. Do you have reasonable grounds?
- Ensure you have standing to bring the legal action. Are you eligible to bring that type of estate litigation?
- Consult with a lawyer. It is recommended that you consult with an estate lawyer who is experienced in BC estate litigation. An experienced lawyer can advise you on the strength of your claim, the evidence you will need, and the best legal strategy for your case. Your lawyer will provide strong legal representation and explain the legal costs you can expect.
- Gather evidence. Gather all relevant documents and evidence, such as medical records, bank statements, and any other documents that may be relevant to your claim. For example, if you suspect undue influence, try to find evidence of the relationship between the deceased person and the person who unduly influenced the deceased.
- Start legal proceedings. Once you have compiled a strong case, you will need to complete and file the appropriate claim form, affidavits, and any other required supporting materials with the Supreme Court of British Columbia. This starts the legal process and you serve it on the estate trustee, administrator, and/or other parties to the litigation to provide notice of the lawsuit.
- Attend court. You will need to attend court to present your case. You will need to provide evidence to support your claim and cross-examine any witnesses called by the defendant(s). A capable and experienced lawyer has the expertise to put the best case forward on your behalf.
- Be prepared for the outcome. Even if you have a strong case, there is no guarantee that you will win. The court will consider all the evidence presented and make a decision based on the law and the facts of the case.
A trial is not always necessary to resolve an estate dispute. In many situations, legal proceedings will have to be started, but there are opportunities to reach an out-of-court resolution along the way. In fact, most estate litigation is resolved without the need for trial, whether it be by negotiations between lawyers and parties, or through the use of mediation.
Parties Involved in Estate Litigation
The parties that will be involved depend on the issues at stake. For example, an estate litigation claim may be brought:
· Against the deceased’s estate by disinherited children or a disinherited spouse
· In the name of the deceased’s estate to recover misappropriated funds or assets
· Against estate trustees or the deceased’s personal representatives by the estate beneficiaries for delay, breach of fiduciary duty, or some other misconduct on the part of the executor or administrator
· Against a third party suspected of wrongdoing (e.g., a caregiver suspected of fraud, elder abuse, or undue influence)
· By creditors of the deceased’s estate to recover a debt owed by the estate.
It is important to note that there are complex court procedures and strict notice requirements that must be followed when starting estate litigation. Here is an example: if you want to bring a will variation claim, the surviving spouse of the deceased person, all of the children of the deceased person, and all of the beneficiaries named in the Will must be included as defendants in your lawsuit and provided with notice of the civil claim. They must be properly served as their interest could be affected if your claim to vary the Will in your favour succeeds. You are also required to name the executor of the Will as a defendant and serve them with the claim.
Roles and responsibilities of each party in the litigation process
Roles and responsibilities vary based on the particular party and the dispute in question. In the example given above, the spouse, children, and named beneficiaries in the Will must be listed as defendants because the outcome of the claim may impact their interest in the estate. However, it is up to them to decide if they wish to participate or take a position in the estate litigation once they have been given proper notice of it.
The executor’s role in a will variation claim is also typically limited. An executor is supposed to stay neutral in most types of estate disputes. The executor doesn’t take a position on whether the gifts in the Will are adequate, and they are not to take sides between the claimant and the other parties.
The situation is different if a creditor or other third party sues the deceased’s estate or there is some claim that must be brought on behalf of the deceased’s estate. The role of the personal representative (that is, the executor or administrator) is more active in these situations. The personal representative has the same rights that would have been available to the deceased to bring a claim or defend against a claim (Wills, Estates and Succession Act, s. 150).
Common Types of Estate Disputes
BC estate litigation can be used to address a variety of disputes, such as:
- Wills variation claims by disinherited children or a disinherited spouse
- Wills variation claims by a spouse or child of a deceased person who was inadequately provided for in the Will
- A challenge to the validity of a Will (for example, declared void due to improper execution of the Will)
- A claim regarding the interpretation of a Will or trust (the Court can interpret the Will to resolve any ambiguity, for example, if the list of beneficiaries is not clearly defined)
- Disputes pertaining to guardianship and capacity (committeeship)
- Unjust enrichment claims
- Power of Attorney disputes
- Claims against the deceased’s personal representative (the executor appointed in the Will or the court-appointed administrator if the deceased died without a Will) for delay, fraud, negligence, breach of fiduciary duty, etc.
- Contesting suspicious transactions (e.g., substantial “gifts” made during a person’s lifetime)
- Disputes concerning the validity of a Will, trust, gift, or property transfer on the grounds of undue influence, lack of capacity, or other suspicious circumstances:
- Lack of Testamentary Capacity. The Court can set aside a Will if it was signed by a will-maker who didn’t have the mental capacity to make a Will. Medical evidence is relevant here, but the test for testamentary capacity is a legal test, not a medical test.
- Undue Influence or Coercion. The Court to set aside a Will that was made because someone exerted undue influence on the will-maker (for example, threats or pressure from a relative or caretaker to the degree that the Will does not reflect the will maker’s true intentions).
- Elder abuse claims
- Determining if a person is a beneficiary in a Will where the executor refuses to provide a copy
- Contentious applications in the probate process.
Trusted legal advice from our estate litigation team
When it comes to estate litigation, we are empathetic, creative, and focus on the results you want. Our estate litigators provide legal advice and effective dispute resolution strategies to beneficiaries, executors, administrators, trustees, guardians, and other family members who are involved in estate litigation matters.
The main objective of our estate litigators is to achieve a speedy resolution that is just and fair for our clients. Depending on your needs and the issues in contention, our estate litigators can bring a lawsuit in court and/or explore alternative dispute resolution options such as negotiation, mediation, and arbitration. If out-of-court settlement is not possible, we have the skills and experienced to take your case to trial.
We believe it’s important to know your legal rights and obligations before making any decisions. That’s why we offer 30-minute free consultations to give you the opportunity to discuss your matter with a passionate and knowledgeable Onyx team member who can advise you on the best steps forward.
Consult with our experienced team at (604) 305-2923.
Frequently Asked Questions
Who can contest a will in BC?
Two different things get called contesting a will, and they run by different rules. A wills variation claim, arguing the will did not adequately provide for you, is open only to the deceased’s spouse or children under section 60 of WESA. Challenging whether the will is valid at all, on grounds like undue influence or capacity, is open to anyone with a genuine interest in the estate, such as a beneficiary under an earlier will.
Is there a deadline to start a wills variation claim in BC?
Yes, and it is strict. You have 180 days from the date probate is granted to file a wills variation claim, then 30 days to serve it on the executor. Miss the 180-day mark and the court will almost never let the claim proceed. Because the clock starts at the grant, watching the probate registry matters if you think you may have a claim.
What are the common grounds for challenging a will’s validity?
The usual arguments are that the will-maker lacked mental capacity when they signed, that someone pressured or manipulated them, that they did not truly know and approve the contents, or that the will was not signed and witnessed properly. Suspicious circumstances, like a major last-minute change that benefits the person who arranged the will, often sit behind these claims.
Does estate litigation always go to trial?
No. Most BC estate disputes settle before a courtroom, often through a mediation the parties are encouraged to attend. Trials are expensive, slow, and hard on families who still have to see each other afterward. A negotiated resolution also keeps the details private, which many families prefer once the initial anger cools.