Estate Litigation

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Vancouver estate lawyers and estate litigation lawyers protect estate assets and property for the real beneficiaries of an estate. If there is no will or no valid will, the administrator transfers estate assets to a husband, wife, son, daughter, father, mother, brother or sister according to the intestacy (no will) provisions in WESA. Family and friends have no say in who receives what. The most important differences between a valid will and an invalid will are the formalities, mental capacity and undue influence.

There is a right way and a wrong way to make a valid will in British Columbia. Every will maker must comply with the formalities of making a will, have the necessary mental capacity and not be unduly influenced by anybody about his gifts. If any of these 3 things does not happen, estate litigation lawyers can take steps to set aside the whole or part of the will as invalid. Estate lawyers also hold executors and trustees accountable for the management of estate assets by way of the duty to account, passing accounts and removing an executor or trustee for not doing his job. Beneficiaries have the right to expect trustees will bring closure to an estate by distributing the assets within a reasonable time.

No valid will. If there is no will or no valid will, the WESA intestacy section sets out who gets what. The most common situations follow. 1. If there is a spouse and no children, the spouse receives everything. 2. If there is no spouse and children, the children receive everything. 3. If there is no spouse and no children, the parents receive everything. 4. If there is no spouse, no children and no parents, the brothers and sisters receive everything. 5. If there is a spouse and children, the spouse receives either the first $300,000 (if the children are biological of both) or $150,000 (if the children are not) and the spouse receives 1/2 of the rest of the estate and the children the other half.

Estate litigation lawyers can take steps to set aside a will if the will maker does not comply with the formalities of making a will, does not have mental capacity or is unduly influenced in making a will. If a will is set aside or not proved in solemn form, a previous will can come into effect. If there is no previous will, the estate assets can go on an intestacy. Under the WESA fixing provisions, the court can turn an electronic or paper document, record or writing into a testamentary disposition (a will). The court can also fix or rectify a will.

Formalities of making a will. A 16-year-old who is mentally capable can make a will. The will must be in writing, signed at the end by the will maker in front of 2 witnesses present at the same time and signed by the 2 witnesses in front of the will maker. The will maker must also know and approve the contents of the will. If an estate litigation lawyer raises suspicious circumstances about the formalities of a will, the executor must prove that the will maker complied with them.

Mental capacity to make a will. The courts have described the test for mental capacity as a “disposing mind and memory.” A disposing mind and memory is a mind able to understand on its own initiative the essential elements of will making such as the just claims for consideration, extent of his property and revocations of any gifts. Mental capacity is more than just an ability to answer familiar, simple and usual questions. If an estate litigation lawyer raises suspicious circumstances about the mental capacity of a will maker, the executor must prove that the will maker did in fact have the required capacity.

Undue influence to make a will. In 1991, the Supreme Court of Canada in Geffen v. Goodman said, “Influence refers to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. To dominate the will of another simply means to exercise a persuasive influence over him or her.” There are 2 ways to set aside a will based on undue influence. The harder way is for the estate litigation lawyer to prove on a balance of probabilities the undue influence based on coercion, fraud or improper/unfair conduct. The easier way is to prove the potential for dependence or domination was present as set out in the WESA undue influence section, in which case the recipient of the gift must prove that he or she did not exercise undue influence. If undue influence is proved or not disproved, the will or the provision in the will is set aside.

Accounting for estate money. Trustees have a common-law duty to be ready at all times to account to the beneficiaries for the assets, money and property in the estate. Trustees also have a statutory duty under the Trustee Act accounts section to pass their accounts within 2 years from the date of probate or grant of administration. A formal passing of accounts can be avoided if all the beneficiaries are ascertained and have the legal capacity to consent to the accounts. A passing of accounts sets out opening capital, capital receipts and disbursements, income receipts and disbursements, and closing capital. It also sets out the trustee’s claim for remuneration which can be up to 5% of the capital, 0.4% of the average capital value during the year and 5% of the annual income earned. Estate litigation attorneys and lawyers can apply to remove a personal representative or trustee who is not doing his job under section 30 of the Trustee Act, section 158 of WESA and the inherent jurisdiction of the court.

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