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Unfair Disputed Wills Variation

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How do I contest an unfair will?

If you have been left out of a Will, disinherited, or feel you have been under-provided for, you can apply to the Supreme Court of British Columbia to vary a Will.

Working with a qualified Estate Litigation lawyer like one of Herr Law Group’s senior Unfair Disputed Will Variation lawyers can help you establish that the requirement of “adequate provision” and “proper maintenance and support” was not met and help ensure you receive all that you deserve.

Our clients appreciate our efficient, results oriented approach to Wills and Estate litigation disputes. If you believe that you have not received your fair share of an estate, or you have been disinherited, we can provide legal help under the BC Wills Estate and Succession Act also known as “WESA.” In addition to rules under WESA, you might also be able to make a claim for unjust enrichment or a constructive trust. We will help guide you to a successful resolution at a very turbulent time in your life.

In high net worth Vancouver Spouse Unfair Wills Variation cases, business valuations and tax calculations by experts are often required. Hiring an experienced and skilled family law and estate dispute litigation lawyer is wise because in cases of unfair wills variation claims by a spouse, the test for fairness will involve comparing the share given to a spouse in an estate against what they would have received on separation under our Family Law Act and Divorce Act. Remember, the legal and moral duty to a spouse is higher than that owed to adult children.

Who can apply to vary a will?

In order to vary a will, you must be considered an ‘eligible applicant’ or claimant, defined as:

  • The surviving spouse, of the same or opposite sex.
  • The common-law spouse (in a marriage like relationship for at least two years prior to the death).
  • The child of the testator, such as disinherited adult children, including adopted children but not step-children, (the testator is the person who creates the Will and who is now deceased).

You don’t need to prove any particular financial hardship in order to successfully challenge a Will. The court will look at all the circumstances of the Estate and the applicant when making a decision, ie, the size and value of the Estate, assets passed outside the Estate, the relationship between the claimant and the deceased Will-maker, misconduct, and how property would have been divided between spouses under family law property division and support rules.

Given the unprecedented size of British Columbian wealthy boomer estates, the stakes in these cases are high.

How does the court determine adequate provision for the will maker’s spouse and children?

The courts will consider the following factors to determine adequate provision for proper maintenance and support of a will-maker’s spouse and children:

  • Actual need, which varies with age and dependency;
  • Justifiable expectation based upon a dependency upon the will-maker or an actual contribution made by the claimant to the will-maker’s estate;
  • The will-maker’s intention and reasons for making his or her will;
  • The size of the will-maker’s estate;
  • What a spouse would receive under family law rules assuming they divorced or separated.

Whether you have been completely disinherited, been given a nominal amount, or have merely received a life interest in property, our BC Unfair Will Variation Lawyers and Estate Litigation lawyers can help you dispute a will and ask the Court to provide properly for you under the BC WVA and WESA.

Does the Wills, Estates & Succession Act (WESA) cover common-law and same sex relationships?

Yes. A spouse can be of the same or opposite sex in a common-law relationship, which is defined as a marriage-like relationship for at least two years prior to the death.

The Herr Law Group is committed, personable, and highly motivated to successfully resolve all types of BC Estate Litigation and Will Variation issues. Our stellar track record and keen understanding of the judicial process will help you assert your rights and obtain the most expedient resolution to your legal claims, and with our command of Estate Litigation and Will Variation litigation, we are your best legal team.

Are there limitation dates when contesting a will?

As per section 61 of the Wills and Estates Succession Act, the limitation period for commencing an action to vary a will is 180 days from the grant of probate. The “grant of probate” is a legal process which, once completed, enables the Executor to collect and distribute the deceased person’s assets.

The time limit begins after probate is issued in a British Columbia Estate. Although the time limit is slightly longer for a claim of unjust enrichment or constructive trust, time is of the essence in all contested estates. Our firm also offers mediation and arbitration services in an effort to resolve disputes at an early stage.

This is a very strict time limitation period and it requires notice to be provided to the executor within 30 days of the expiry of this 180 day period. If you feel you have been treated unfairly, do not delay.

Is the entire estate covered under the WESA Act?

What is covered under the WESA Act:

  • All real property (land and buildings) in BC, regardless of where the testator lived prior to his or her death;
  • All personal property such as cash, securities, moveable assets, wherever located only if the testator lived in BC and intended to make BC his or her permanent home;
  • Only assets that form the Estate are subject to the Act.

What is not covered:

  • An insurance policy in a specific beneficiary’s name will not be included in the estate;
  • Certain types of pension benefits;
  • Jointly owned property where the other owner is not a spouse or a child is dealt with on a case by case basis due to the unique circumstances.

The qualified lawyers at MacLean Law are available to outline some of the most important principles that apply and provide the advice you need to ensure that your assets are divided in the manner you intend.

If you’re concerned about the validity of a Will, you’ve been disinherited, or you wish to challenge its provisions we strongly recommended that you consult a Wills and Estate Lawyer to better understand your legal rights and obligations. Our experienced BC Will and Estate Litigation Lawyers are here to help. Please feel free to contact us now.

If the marriage is failing or one partner is ill, what steps should I take to protect myself?

If your marriage is breaking down, knowing the rules of how a spousal claim is made under either family law or by way of a WESA estate litigation claim is critical, and the rules are confusing.

You need to get immediate advice if your marriage or marriage-like relationship is unstable, particularly if you or your spouse have serious health challenges. Failing to do so may prevent you from obtaining a fair estate litigation settlement for a disputed will. Whether spouses are separated and whether there are any agreements or orders for spousal support makes a huge difference.

If you have concerns over a loved one’s ability to do what’s best with respect to their financial and health decisions, you can explore a number of ways to put protection in place. These decisions are emotional, serious and require proper guidance from the experienced estate litigation lawyers at Herr Law Group.


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