Estate Disputes - Part One

Author: R. Trevor Todd for The Lawyers Weekly

In over 30 years as a Canadian, I've been consulted by many hundreds of bewildered clients who find themselves involved in a Canadian estate dispute. More frequently than not they have been disinherited, while on other occasions, there are legal issues relating to testamentary documents that give rise to estate litigation. When these situations arise, it is absolutely crucial that the client obtain legal advice as quickly as possible, and preferably with an experienced Canadian estate litigation lawyer. Many of these estate issues are time sensitive, and it is often necessary for the estate lawyer to act quickly in order to forestall a Grant of Probate of a suspect Will, or the absconding of estate funds by a rogue.

Probably secondary to obtaining prompt and capable legal advice, is for the client to better understand the nature of the type of estate dispute that may or may not pertain to their particular situation. One of the best sources of such information is the Internet, as there are a number of websites, such as my own at www.disinherited.com, that provide a great deal of free and well considered legal information. It must be stressed, however, that the laws relating to estate disputes can vary from jurisdiction to jurisdiction, and so my own website for example, relates only to the estate law in British Columbia.

Accordingly, I wish to set out the 10 most common estate disputes that I handle as an estate lawyer. There are, of course, many others, but most Vancouver estate disputes have more than one issue, and the following maybe of assistance to the reader in trying to determine the nature of his or her own estate dispute. The first five dispute types are below; the next five are in Estate Disputes: Part Two.

Lack of Mental Capacity

As a lawyer in BC, I am frequently contacted by individuals who assert that when his or her friend or relative signed the latest Will, it was done when the Deceased lacked sufficient mental capacity to appreciate the legal consequences of his or her act. In order to be mentally competent, a person's mind "must be able to comprehend of its own initiate and volition at the time that instructions are given to a lawyer for the preparation of a Will or other testamentary document such as a trust.."

A person's mental capacity is often difficult to determine, and the evidence will usually involve the interplay of medical, legal and lay person's opinions.

Undue Influence

Many individuals are occasionally taken advantage of by care-givers, family, acquaintances, neighbours and the like. Demented people are particularly vulnerable to mental pressure. Undue influence must be tantamount to "coercion" of the other person's free will so as to control the other person's mind. This is often hard to prove, and the Court will look for "suspicious circumstances". It is necessary in British Columbia to prove undue influence in matters relating to the preparation of the Will, however, where there is a substantial gift for no or little consideration, made to a person in a special relationship such as a care-giver or a trusted person, then there is a presumption of undue influence that shifts the burden to the defendant to disprove.

Wills Issues

It is relatively common for a drafting error or execution error to arise in the preparation and execution of a Will in BC. This is particularly the case where an individual has prepared his or her own Will, and not retained a will and estate lawyer. Some of the many common mistakes are:

• A spouse of a beneficiary, or a beneficiary him or herself cannot witness a Will or the bequest is invalid to that beneficiary
• Marriage after the Will is executed will revoke the Will
• Improper witnessing of the Will
• Using incorrect, vague or contradictory language

The Wills Variation Act

Under British Columbia law, spouses, common-law spouses, same sex couples, after a two year marriage like relationship, and natural children and adopted children of a Deceased have the right to contest an estate on the basis that the Deceased parent or spouse failed to make adequate provision for their proper maintenance and support. The Act will apply to any assets owned by the Deceased that pass under a valid Will and form part of the Deceased's estate. It is not applied to property that passes by right of survivorship, such as a joint tenancy or a designated beneficiary under a pension or insurance policy. In British Columbia this action must be brought within 6 months from the date of the Grant of Letters Probate. The Supreme Court of Canada landmark decision Tatryn v. Tatryn, in 1994, decided inter alia that a testator has a legal obligation to provide for his or her spouse, and his or her minor children, and has a moral obligation to provide for adult children. Legal obligations take priority over moral obligations, however, if there are sufficient assets, then both legal and moral obligations should be met. This reasoning allows for the possible successful claim of an adult, independent child to contest his or her parent's estate on the basis that he or she were not adequately provided for. In approximate terms, a spouse should be provided at least as much as the spouse would have obtained had there been a divorce.

Intestacy Issues

Intestacy is when a Deceased person in Canada dies without a Will. Contrary to what many people think, in Canada, the Deceased's assets do not then go to the government, but instead go by way of a formula to the next-of-kin. In British Columbia that formula is provided for the Estate Administration Act.

The most common type of intestacy issue that I have seem seen in BC is that of the separated spouse, who loses his or her right to qualify under an intestacy if the spouses had been separated for one year prior to the death of the Deceased.

R. Trevor Todd is a wills and estates lawyer and litigation in Vancouver and has contributed to the The Lawyers Weekly.

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