Planning the will around the family home
When a home owned for decades is the largest asset, the will has to say clearly what happens to it. These are the questions to settle, and each has a legal edge.
| Question | Why it matters |
|---|
| Should the house go to one child, or be sold and the proceeds shared? | A gift of the house itself has to work alongside the rest of the estate. If its value is far larger than everything else, other gifts may have to be reduced, and the will should say how. |
| One child lives in the house or cared for a parent there. Should that be recognised? | Unequal treatment is allowed, but a spouse or child who is left without adequate provision can ask the court to vary the will under WESA section 60. The will-maker’s reasons, recorded at the time, help the court see why. |
| Is there a second spouse, and children from an earlier relationship? | A spouse and children can each bring a variation claim. Balancing a surviving spouse’s need for a home against the children’s expectations is one of the hardest parts of the plan. |
| Who will look after the house between the death and the sale or transfer? | The executor holds it for the people entitled to the estate and must administer it and account for it until it is distributed. Choose someone able to do that. |
The house passes to the executor under the will, and the probate fee is charged on the gross value of BC real estate that passes to the executor in that way. The courts have said that a will-maker’s reasons for unequal treatment must be valid and rational; our articles on a cultural tradition favouring sons and spite as a reason to disinherit show where that line falls. Our estate planning group drafts wills with these questions in mind.
Choosing who decides if you cannot
Two documents cover the period before death, and both can be signed at the Kerrisdale office.
An enduring power of attorney lets the person you name handle your financial and legal affairs, and it continues if you lose capacity. The Power of Attorney Act sets the signing rules: two witnesses, or one if the witness is a lawyer or notary, and the attorney, the attorney’s spouse, child or parent cannot be a witness. If the attorney may need to sell or mortgage your home, the document must also be signed and witnessed in the form the Land Title Act requires, or it will not be effective for land title purposes. If you name your spouse, their authority ends if the marriage or marriage-like relationship ends.
A representation agreement covers personal and health care. The standard form can also cover routine finances such as paying bills and depositing pension income; if it does, you must name a monitor to oversee the representative, unless the representative is your spouse, the PGT, a trust company or credit union, or two representatives who must act together. A broader agreement can authorise decisions such as where you will live, including a move to a care facility.
There is one link between these documents and your will that is easy to overlook. If your will leaves a particular asset, say the house, to one child, and your attorney sells it while you are incapable, that child is entitled under WESA section 48 to an amount equal to the sale proceeds from your estate, unless the sale followed your own instructions while you were capable or the will shows a contrary intention. Planning the will and the power of attorney together avoids surprises.
If no power of attorney exists and capacity is lost, the family may have to apply to the Supreme Court to appoint a committee; see committeeship applications and our article on the difference between a power of attorney and an executor.
When an attorney is already acting
The same law matters when a parent’s power of attorney is already in use and a brother or sister is handling the money. The Power of Attorney Act sets the attorney’s duties. An attorney must act honestly and in good faith, with the care of a reasonably prudent person, within the authority the document gives, and must keep records and produce them for inspection when the adult asks. Financial decisions must be made in the adult’s best interests, taking account of their current wishes and known values.
Gifts and loans are tightly limited. Unless the document expressly permits them, an attorney may make a gift or loan from the adult’s property only if the adult will still have enough to meet their own care needs and obligations, the adult made gifts of that kind while capable, and the year’s total stays under a prescribed value. An attorney can receive a gift or loan personally only if the document allows it. Changing a beneficiary designation the adult made requires the court’s authorisation.
If you believe an attorney is misusing the power, or that a parent was pressured into signing one, any person may report it to the Public Guardian and Trustee, which must review the report and may investigate. The court can also be asked to intervene.
When life changes after the will is signed
Under WESA a will is revoked only in the ways the Act lists, and a change in circumstances such as marriage is not one of them, so a will signed before a remarriage stays in force until it is changed. Separation works the other way. Unless the will says otherwise, a gift to a spouse, and the spouse’s appointment as executor, are revoked if the two of you cease to be spouses, and the estate is then distributed as if the spouse had died first. A second marriage, children from an earlier relationship and a house bought before the new relationship can all feed a wills variation claim, so these wills deserve care. Our article on what kind of lawyer does wills and the page on wills cover the drafting, and what a “living will” means in BC explains the health care side.
After signing, a wills notice can be filed with the Vital Statistics Agency so that your executor can find the will. The agency records where the will is kept, not what it says.
When a parent dies: probate
An executor named in the will normally needs a grant of probate before banks and the land title office will deal with the estate. The steps are set by Part 25 of the Supreme Court Civil Rules: a notice of the proposed application to the beneficiaries and others entitled to it, a 21-day wait, a wills notice search, and an affidavit listing the assets and debts. The application can be filed in any Supreme Court registry; the Vancouver registry at the Law Courts, 800 Smithe Street, is about 6.5 km by road from the Kerrisdale office. Our probate and estate administration group is led by Veronica Manski; she prepares applications for grants of probate or administration. For timing and costs, see how long probate takes in BC and lawyer fees for probate.
An executor is also paid for the work, and the amount can be challenged. Our article on executor’s fees reduced for failure to remain neutral shows how the court responds when an executor takes sides.
When the family disagrees
Disputes about west-side estates come to the same Supreme Court as any other. The main options are a claim by a spouse or child to vary a will that did not adequately provide for them, which has to be filed no later than 180 days from the issue of the grant; a challenge to the will’s validity on the grounds of capacity, formalities or undue influence; and a claim about property transferred during life. A person entitled to notice who wants to hold up the grant while taking advice can file a notice of dispute, as long as no grant has issued yet. Our estate litigation group, led by Candace Cho, KC, acts for beneficiaries, left-out family members and executors. Two cases from our articles show the issues: the court’s rejection of a cultural tradition favouring sons, and a family’s claim against an alleged financial predator who married a senior with dementia. On capacity, see what lack of testamentary capacity means in BC.
Who you will work with
The firm’s two principals, Candace Cho, KC and Judith A. Janzen, joined forces in 2012. Estate planning is led by Sandy Minh Abley, called to the bar in 2005, a member of the Society of Trust and Estate Practitioners and a Certified Financial Planning professional. Veronica Manski, called in 2015, prepares wills, powers of attorney and representation agreements, sets up alter ego and joint partner trusts, and handles probate. Contested estates are handled by Candace Cho, KC and our litigators: Jackson Todd, Valerie LeBlanc, Katya Richardson, Kevin Campbell, Louisa Ledesma, TJ Garcha, Jesse Patrao and Julia Pinnock. Profiles are on the team page.
The Kerrisdale office
Suite 201, 5455 West Boulevard is a few blocks north of West 41st Avenue. Meetings by phone or video can be arranged if travel is difficult. Separation and divorce questions go to our Kerrisdale family lawyers.
Common questions
Can I leave the house to the child who looked after me?
Yes. You can treat children unequally, but a child who is left without adequate provision can ask the court to vary the will. Recording your reasons when you sign the will helps if that happens.
Does my power of attorney let my son sell the house?
Only if it gives him that authority, and only if it was signed and witnessed in the form the Land Title Act requires. Older documents may not meet that standard; have yours reviewed.
I remarried. Is my old will still valid?
Yes. Under WESA, marriage does not revoke a will. Review it anyway, because a new spouse can bring a wills variation claim if the will does not provide adequately for them.
Do you charge for a first meeting?
There is no charge for the first 30 minutes on an estate dispute. Planning and probate consultation terms are explained when you phone (604) 900-2538.
