What is Estate Litigation in British Columbia?
The property left behind by a deceased person is called their “estate.” A deceased’s person’s estate typically includes real estate, assets like bank accounts and 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.
But estate litigation is even broader than that. Assets such as RRSPs, insurance proceeds, and trust property pass outside of the deceased person’s estate. Disputes in relation to true ownership of these types of assets are dealt with in estate ligation matters. Challenges to gifts or property transfers made during the deceased’s lifetime 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’ 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.
What is the difference between a solicitor and a litigator?
The roles of a solicitor and a litigator are quite different. When talking about wills and estates law, a solicitor provides estate planning advice and prepares legal documents to achieve estate planning goals. Estate planning lawyers regularly assist clients with preparation of Wills, Representation Agreements (for health care), Powers of Attorney, Alter Ego Trusts and Joint Partner Trusts, Disability Trusts, and other estate planning tools.
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 legal challenges. We have a team of highly skilled Vancouver estate law lawyers who can help you create a comprehensive estate plan that incorporates planning for future incapacity to ensure your financial, legal and health care can be appropriately managed.
Estate litigators, on the other hand, handle legal disputes involving estates and trusts. An estate litigation lawyer assists clients to resolve disputes covering a wide range of issues (see the next section for some common examples). Depending on the client’s needs and the issues in contention, an estate litigator 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, an estate litigator will take the case to trial.
In addition to representing clients in court, 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 an estate litigator is to achieve a speedy resolution that is just and fair for their client.
Examples of common types of estate litigation cases
BC estate litigation cases can include a variety of disputes, such as:
- Challenges to the validity of a Will
- Wills variation claims by disinherited children or a disinherited spouse
- Wills variation claims by a spouse or child of the deceased who was inadequately provided for in a Will
- Claims regarding the interpretation of a Will or trust
- 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” before death)
- 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
- 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.
Depending on the issues at stake, the estate litigation claim may be brought against the deceased’s estate (e.g., by disinherited children), in the name of the deceased’s estate (e.g., to recover misappropriated funds or assets), against a trustee or the deceased’s personal representative (e.g., by beneficiaries for delay or breach of fiduciary duty), or against a third party suspected of wrongdoing (e.g., a caregiver suspected of fraud, elder abuse, or undue influence).
Why Do You Need an Estate Litigation Lawyer in Vancouver?
Estate law is complex. It is an option to try to handle estate litigation on your own—but doing so is fraught with risk. If you choose to represent yourself, be prepared. Estate litigation involves reviewing and preparing extensive amounts of paperwork including court applications, petitions, affidavits, and court orders. It also requires knowledge of the detailed rules of procedure and awareness of deadlines/limitation periods that apply at different stages of the court proceedings.
If the matter proceeds to trial, you will need to gather and properly present all evidence to support your case and be prepared to know and effectively argue the law. Then, when it is all said and done, how can you be sure that the outcome is fair?
Sound scary? That’s because it is. All litigation is complicated and stressful, but estate litigation is even more so as it involves the death of a loved one and deep strife among friends and family members. You need a litigator who understands estate law on your side.
Benefits of working with an experienced estate litigation lawyer
When you choose to work with an estate litigation lawyer, you get the benefit of their knowledge and experience in the legal system. Your lawyer will ensure you understand your rights, inform you of your legal options, and advise you on the best strategy for achieving results. Our team of Vancouver estate litigation lawyers have the practical know-how, sensitivity, and creativity to get results.
How Do Estate Litigation Lawyers in Vancouver Help?
From the outset, your litigation lawyer is driven to help your estate claim succeed. Your lawyer will meet with you to gather information about your case and handle investigation of your claim in detail. Your lawyer will provide you with an opinion on the strengths and risks involved in your case and update you if new evidence or information changes their initial opinion. You can’t make smart decisions without knowing all of that critical information and how the law applies in your situation.
Broad range of services, customized to your needs
Our Vancouver estate litigation lawyers offer an extensive range of services, customized the needs of your case. Beyond researching and investigating claims, services include drafting court applications and petitions, including relevant facts and law. After court proceedings have been started, the process of discovery begins. Your lawyer will continue to gather and examine evidence and witnesses, using subpoenas and/or other court motions to secure testimony and documents (e.g., Wills, bank records, a notary or lawyer’s files). Litigators also assist by securing specific estate assets and overseeing the personal representative’s management and distribution of estate property.
Achieving the best possible outcome in your estate claim
Your estate litigation lawyer will represent you in court at each stage of the proceedings. Throughout the process, your lawyer will also engage in negotiations with other parties and their lawyers to attempt to achieve the best possible outcome in your case without the necessity of a trial. Before a trial is held, your lawyer will explore alternative dispute resolution options with you, using mediation and other processes to achieve the most favorable result in your case with the least expense.
If settlement is not reached, your estate litigation lawyer will take your case to trial. Conducting a trial is a significant endeavour. It requires examination and cross-examination of witnesses and experts, making opening and closing statements, and arguing the relevant law in a clear and convincing manner. Your lawyer will take care of all of this for you.
When you have experienced counsel in your corner, you can rest assured that timelines are met, your rights are protected, and results are fair.
How to Choose an Estate Litigation Lawyer in Vancouver
Of course, you will need to consider the lawyer’s qualifications, experience, and reputation in the legal community. You want a lawyer who devotes their practice to estate litigation as opposed to a general practitioner who will not have the same level of knowledge of complex estate laws and rules of procedure.
Another tip is to meet with the estate litigation lawyer before you decide who to hire. An initial consultation with the lawyer will give you the opportunity to get a feel for their communication style and whether you feel comfortable working with them. You may need to share intimate details and private information with your lawyer. Choose a lawyer you trust and have confidence in.
Need to talk to a Vancouver estate litigation lawyer?
When it comes to estate litigation, we are empathetic, creative, and focus on the results you want. We offer a 30-minute free consultation to give you the opportunity to discuss your matter with a passionate and knowledgeable lawyer who can advise you on the best steps forward. You have nothing to lose and so much to gain. Contact Onyx Law today.
