Estates & Trust Lawyers

Estate law reaches people at two very different moments: when you are planning ahead and want your affairs to land the way you intend, and when someone has died and the plan — or the absence of one — has to be carried out. Both moments run on the same body of British Columbia law, and both go more smoothly when you know how that law actually works rather than what you half-remember from a relative’s estate in another province.

At Onyx Law Group, we handle wills and estate planning, probate and estate administration, trusts, and estate litigation from offices in Vancouver, Burnaby, and Surrey. This page walks through the BC framework — the statute, the formalities, the intestacy rules, the probate process, and the disputes that arise when families disagree — so you can see where your own situation fits. When you are ready to talk it through, book a confidential consultation.

What estate and trust law covers in British Columbia

Estate work in BC sorts into a handful of related jobs. There is planning: drafting a will, setting up trusts, and putting powers of attorney and representation agreements in place so someone can act for you if you lose capacity. There is administration: the executor’s work of gathering assets, paying debts and taxes, and passing what remains to the beneficiaries, usually after obtaining probate from the Supreme Court. And there is litigation: the disputes that surface when a will is unclear, when someone has been left out, or when a beneficiary believes the person handling the estate is doing it wrong.

These threads connect. A poorly drafted will creates work for an executor and openings for a challenger. A well-planned estate with the right trusts can sidestep both probate fees and family conflict. Understanding the whole picture is what keeps a plan from unravelling and an administration from stalling. The three areas map onto our practice pages: estate planning lawyers, probate and estate administration lawyers, and estate litigation lawyers.

WESA: the one statute behind most BC estate law

British Columbia rewrote and consolidated its estate law when the Wills, Estates and Succession Act (SBC 2009, c. 13) came into force on March 31, 2014. WESA pulled together rules that used to be scattered across the old Wills Act, Estate Administration Act, and Wills Variation Act into a single statute. If you read older articles or forms about BC estates, some of the terminology and section numbers will not match — a common source of confusion for anyone researching their own file.

WESA governs what makes a will valid, who inherits when there is no will, how estates are administered, and who can ask a court to vary a will. A handful of related statutes fill in around it: the Probate Fee Act sets the fees on a grant, the Trustee Act covers what trustees and executors may do and be paid, the Power of Attorney Act and Representation Agreement Act handle incapacity planning, and the federal Income Tax Act drives much of the trust and estate-tax planning. Knowing which statute answers which question is the first thing that separates a confident plan from guesswork.

Making a will that holds up

A will is only as good as its execution. Get the formalities wrong and the document can fail entirely, sending your estate to the intestacy rules you were trying to avoid. BC sets a low age bar — under section 36 of WESA a person can make a will at 16 — but the signing rules are strict, and they are where homemade wills most often come apart.

The signing rules under section 37

Section 37 of WESA sets three requirements, and all three have to be met. The will must be in writing. It must be signed at its end by the will-maker (or by someone else in the will-maker’s presence and at their direction). And that signature has to be made or acknowledged in front of two witnesses present at the same time, who then each sign the will in the will-maker’s presence. The two-witnesses-together rule is the one people miss: a will signed in front of one witness on Monday and another on Tuesday does not satisfy section 37. A witness who is also a beneficiary creates a further problem — under section 43 a gift to a witness is presumptively void, even though the will itself can still stand.

When a flawed will can still be saved: section 58

WESA softened the old all-or-nothing rule. Section 58 gives the Supreme Court a curative, or dispensing, power: even where a document does not meet the section 37 formalities, the court can order that it is fully effective as if it were a valid will, provided the court is satisfied the record represents the deceased’s true testamentary intentions. Courts have used section 58 to save unsigned drafts, notes, and in some cases electronic records. It is a safety net, not a plan — proving testamentary intent after the fact is expensive and uncertain, and section 58 applications are their own kind of litigation. The point of doing a will properly is to never need section 58 at all.

Testamentary capacity and the Banks v Goodfellow test

Beyond the signing rules, the will-maker has to have had the mental capacity to make the will. BC courts still apply the test from an 1870 English case, Banks v Goodfellow, which asks whether the will-maker understood the nature of making a will and its effects, understood the extent of the property being disposed of, could appreciate the claims of the people who might expect to benefit, and was not affected by a disorder of the mind that distorted those judgments. Capacity is assessed as of the time the will was made. This is why a will drafted for someone in early cognitive decline is worth extra care — a contemporaneous capacity assessment and careful notes can be the difference between a will that survives a challenge and one that does not.

Dying without a will: intestacy under Part 3 of WESA

When someone dies without a valid will, they die intestate, and Part 3 of WESA decides who inherits. The estate does not go to the government except in the rare case where no relatives can be found. Instead the Act sets a fixed order, and it may not match what the deceased would have chosen — which is the strongest argument there is for having a will.

The preferential share and how the rest is split

The rules turn on who survives the deceased. If there is a spouse and no descendants, under section 20 the spouse takes the entire estate. If there is a spouse and descendants, section 21 gives the spouse the household furnishings plus a preferential share before anything else is divided: $300,000 if all the descendants are also descendants of the surviving spouse, or $150,000 if any descendant is from another relationship. Whatever is left after the preferential share is then split — one half to the spouse and one half among the descendants. If there is no spouse, section 23 sends the estate to the descendants, and if there are none, outward to parents, then siblings and their children, in a set order.

Two wrinkles catch people. “Spouse” in WESA includes an unmarried partner who lived with the deceased in a marriage-like relationship for at least two years, so a long-term common-law partner can inherit on an intestacy — but two people can each qualify as a spouse at the same time, and section 22 then splits the spousal share between them. And where the estate is worth less than the preferential share, the spouse can end up with everything while children from a prior relationship receive nothing. These outcomes are baked into the statute; only a will can override them. If you have been left out of an estate or think the intestacy result is wrong, our inheritance lawyers can tell you where you actually stand.

Probate and estate administration

Probate is the court process that confirms a will is valid and gives the person named as executor the authority to act. Most substantial estates need it, because banks, the land title office, and investment firms usually refuse to release or transfer significant assets without a grant. Assets that pass outside the estate — property held in joint tenancy with a right of survivorship, or accounts and policies with a named beneficiary — generally move without probate, which is a large part of why they feature in planning.

Grant of probate versus grant of administration

The name of the grant depends on the situation. Where there is a valid will naming an executor, the executor applies for a grant of probate. Where there is no will, or the will names no one able to act, the court instead issues a grant of administration to an administrator, and WESA section 130 sets the priority order for who may apply — the spouse first, then children, and so on. Where there is a will but no functioning executor, the grant is administration “with will annexed.” The label matters because it determines who holds the legal authority and under what terms they act.

What an executor actually has to do

An executor (or administrator) is a fiduciary, and that word carries weight. They must act honestly, in good faith, and in the beneficiaries’ interests rather than their own. The core tasks run in a rough order: locate and secure the assets, apply for probate where needed, notify beneficiaries, pay the deceased’s debts and taxes, file the final and any estate tax returns, keep proper accounts, and distribute what remains. An executor who mismanages the estate — who self-deals, distributes too early, or loses value through neglect — can be held personally liable for the loss. Executors are entitled to be paid: under section 88 of the Trustee Act, up to 5% of the gross value of the estate, up to 5% of the income earned during administration, and, if the court allows, an annual care and management fee of up to 0.4% of the estate’s average value. Beneficiaries who think the fee is excessive can have the court review it. Our probate and estate administration lawyers guide executors through each step and take on the paperwork that trips people up.

Probate fees in BC

Probate fees in BC are set by the Probate Fee Act and calculated on the gross value of the estate passing through probate. There is no fee on estates worth $25,000 or less. Above that, the fee is roughly $6 for every $1,000 of value between $25,000 and $50,000 (about 0.6%), and about $14 for every $1,000 above $50,000 (about 1.4%), plus a $200 basic filing fee for estates over $25,000. On a $1,000,000 estate that works out to roughly $13,650 in probate fees. Because the fee is charged only on assets that pass through the estate, assets structured to pass outside it — joint tenancy, beneficiary designations, certain trusts — reduce the base the fee is calculated on. That is legitimate planning, though it has to be weighed against the risks those structures create, which is a conversation worth having before you retitle anything.

The Wills Registry search and the 21-day notice

Two steps sit between deciding to apply for probate and actually filing. First, the applicant must search the Wills Registry maintained by the BC Vital Statistics Agency. The registry does not hold wills themselves; it records where a will is kept, and a wills notice search confirms whether the deceased filed a notice of a later will than the one you are holding. Second, under section 121 of WESA, the applicant must deliver notice of the intended application to every beneficiary and every person who would inherit on an intestacy, and must wait at least 21 days after that notice before submitting the application to the court. That 21-day notice period gives interested parties a chance to come forward, and skipping it is a common reason applications get rejected and sent back. For a plain-language walkthrough of the whole process, see our guide on what probate is in BC.

Estate litigation: contesting a will and estate disputes

Not every estate is straightforward, and BC gives disappointed spouses, children, and beneficiaries real avenues to challenge what happened. There are two very different things people mean by “contesting a will,” and confusing them wastes time and money.

Wills variation claims and the 180-day clock

The first route accepts that the will is valid but asks the court to change how the estate is divided. Section 60 of WESA lets the court vary a will that fails to make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. British Columbia is unusual in Canada for how broadly it allows this: an adult, independent child can bring a claim, not only a minor or a dependent one. Standing is limited, though — only a spouse (married, or two years marriage-like) and children (biological or adopted, of any age; not stepchildren or grandchildren) can apply.

The leading case is the Supreme Court of Canada’s decision in Tataryn v Tataryn Estate (1994), which frames the analysis around two kinds of duty the will-maker owed: legal obligations (what the law would have required, for example spousal support) and moral obligations (what a reasonable, judicious person would have done in the circumstances). The court’s job is to reach a result that is “adequate, just and equitable.” The deadline is unforgiving: under section 61 a wills variation claim must be started within 180 days of the grant of probate, and served on the executor within a further 30 days, unless the court extends the time. Miss it and the claim is usually gone. If you have been cut out of a will or left with far less than you expected, our guide on contesting a will in BC through wills variation covers how these claims run, and a disinherited spouse has some of the strongest standing the section recognizes.

Challenging a will’s validity: capacity and undue influence

The second route argues the will should not stand at all. The usual grounds are that the will-maker lacked testamentary capacity (the Banks v Goodfellow test above), that the will was not signed and witnessed as section 37 requires, or that the will was procured by undue influence. Undue influence is where WESA changed the rules: section 52 shifts the burden of proof. If a challenger shows that the person who benefited was in a relationship where the potential to dominate or dependence existed, the burden moves to the person defending the gift to prove it was not the product of undue influence. That reversal matters in the fact patterns where these disputes usually arise — an isolated elderly parent, a new will favouring one caregiver child. If a validity challenge succeeds, an earlier valid will governs, or the intestacy rules apply. These are fact-heavy cases that turn on medical records, drafting notes, and witness evidence; our estate litigation lawyers assess the grounds and the evidence before the limitation window closes.

Removing or replacing an executor

Sometimes the dispute is not about the will but about the person carrying it out. Where an executor or administrator refuses to act, drags the administration out unreasonably, self-deals, or otherwise breaches their fiduciary duty, WESA section 158 gives the court power to remove or pass over a personal representative and appoint someone else. Removal is not granted lightly — courts respect the deceased’s choice of executor and look for real misconduct or incapacity, not mere friction between an executor and the beneficiaries. But the remedy is there, and the threat of it often prompts a stalled executor to finish the job. Beneficiaries also have the right to a proper accounting, which is frequently the first step that surfaces whether there is a real problem.

Trusts and why people use them

A trust splits legal ownership from benefit: a trustee holds and manages property for the people who are meant to enjoy it, the beneficiaries. Trusts come in two broad families by timing. A testamentary trust is created by a will and comes into existence on death — used, for example, to hold a minor’s inheritance until they are old enough, or to provide for a surviving spouse while preserving capital for children. An inter vivos (living) trust is set up while the settlor is alive. Both are shaped as much by tax rules in the federal Income Tax Act as by trust law, so trust planning is where estate and tax advice have to work together.

Alter ego and joint partner trusts

Two inter vivos trusts are common in BC estate plans because of a tax advantage. An alter ego trust is available to a settlor who is 65 or older; the settlor is the only person entitled to income and capital during their lifetime. A joint spousal or common-law partner (joint partner) trust works the same way for a couple. Property can be transferred into either trust without triggering an immediate capital-gains tax (a rollover at cost under the Income Tax Act), and because assets held in the trust pass outside the estate on death, they avoid probate and the fees that go with it, and they are harder to attack through a wills variation claim. They are not right for everyone — they carry their own costs and tax timing — but for the right person over 65 they can do a lot of work at once.

Discretionary trusts

In a discretionary trust, the trustee decides how much each beneficiary receives and when, rather than everyone taking a fixed share. That flexibility is useful where beneficiaries have different needs or where handing someone an outright inheritance would cause harm. The clearest example is planning for a beneficiary with a disability: a properly structured discretionary trust (often called a Henson trust) can provide for that person without the trust assets being counted as their own, which protects their eligibility for provincial disability benefits. Discretionary trusts are also used to protect a spendthrift beneficiary or to keep an inheritance out of a beneficiary’s own matrimonial property. The trade-off is that the trustee holds real power, so choosing the right trustee and drafting clear guidance matters more here than almost anywhere else in estate planning.

Planning for incapacity, not just death

A will does nothing while you are alive. If illness or injury leaves you unable to manage your own affairs, a will is silent — you need separate documents, and the time to sign them is while you still have capacity. BC uses two main tools, and they cover different territory.

An enduring power of attorney, made under the Power of Attorney Act, lets you appoint someone to manage your financial and legal affairs. “Enduring” is the operative word: an ordinary power of attorney ends if you become incapable, while an enduring one is written to continue through incapacity, which is the whole point for planning. A representation agreement, made under the Representation Agreement Act, covers the other half of life — health care and personal care decisions — and can range from a standard section 7 agreement to a broader section 9 agreement giving wide authority over medical treatment. Both should name people you trust and be drafted to fit your circumstances.

The cost of skipping these is real. If you lose capacity without an enduring power of attorney or representation agreement in place, your family cannot simply step in. Someone has to apply to court under the Patients Property Act to be appointed your committee — a slower, more expensive, and more public process than signing the documents would have been. Incapacity planning is the part of an estate plan people most often leave undone, and it is the part that most often causes a crisis. Our estate planning lawyers put the full set of documents in place together — will, powers of attorney, and representation agreement — so nothing important is left uncovered.

A related practice area

Estate and family matters overlap more than people expect. A separation or divorce changes who should inherit and who holds your powers of attorney; an inheritance received during a relationship raises both estate and family-property questions; and a wills variation claim by a spouse leans on the same support principles that run through family law. Onyx Law Group practises in both areas, so these threads can be handled together rather than bounced between firms.

• Family and divorce lawyers: separation, property division, support, and parenting — and the estate-plan updates that should follow a divorce.

Working with Onyx Law Group’s estate lawyers

Estate matters are rarely just legal. They land in the middle of grief, family history, and money, often at the same time. We aim for clear advice and steady representation shaped to your circumstances rather than a template.

• Both sides of the practice. We plan estates and we litigate them. That means when we draft a will or a trust, we are drawing on what we have seen fail in court — and when we run a dispute, we understand how the documents were meant to work.
• Three Metro Vancouver offices. We meet clients in Vancouver, Burnaby, and Surrey: a real local presence, not a virtual address.
• Executors and beneficiaries both. We act for people administering estates and for people challenging them, so we know how each side thinks and where cases actually turn.
• Straight answers on the deadlines. Estate law is full of hard limits — the 180-day wills variation clock, the 21-day probate notice, limitation periods on validity challenges. We flag them early so a right is never lost to the calendar.

What estate work costs

Cost depends on what you need. A straightforward will, or a will together with powers of attorney and a representation agreement, is often handled for a fixed fee, so you know the number before you start. Trust drafting and larger estate plans are usually quoted once the structure is clear. Probate and estate administration are commonly billed on the work involved, and a well-organized estate with cooperative beneficiaries costs far less to administer than one that is not.

Litigation is the variable. Wills variation claims and validity challenges cost what the fight costs, and the biggest driver is whether the parties are willing to settle. Many estate disputes resolve through negotiation or mediation well before trial, which is usually the cheaper and faster path for everyone, and often the one that keeps a family on speaking terms afterward. We set out the likely fee structure and the realistic range at the outset, so you can decide with the numbers in front of you.

Speak with a BC estates lawyer

Whether you are planning ahead, administering an estate, or facing a dispute over one, you do not have to work it out alone. Onyx Law Group acts for clients across British Columbia from offices in Vancouver, Burnaby, and Surrey, with clear advice and representation focused on protecting what matters to you and your family. Contact us today to arrange a confidential consultation, or call (604) 900-2538.

Disclaimer: The information on this page is general legal information about British Columbia law, not legal advice for any specific situation. Reading this page does not create a solicitor-client relationship. BC law changes, and the law and procedure that apply to any particular estate depend on facts not covered here. For advice on your own circumstances, speak with a qualified British Columbia estates lawyer directly. Past results and illustrative scenarios do not guarantee similar outcomes in any specific case.