Pre-Death Estate Litigation

Estate disputes are usually thought of as conflicts that arise after someone passes away. In some cases, these disputes begin while the will writer is still alive and can change their will. Pre-death litigation involves challenging a testator’s estate plan while they are still capable of making those decisions. This can happen due to concerns about their mental capacity, undue influence, or disagreements over broken promises.

Pre-death litigation is becoming more common in British Columbia as families grapple with complex estate issues. These disputes can be highly emotional and may have long-lasting impacts on both the testator and their loved ones. Understanding why pre-death litigation occurs, the legal tools available, and the potential consequences is important for those considering challenging a will.

What is Pre-Death Estate Litigation?

Pre-death litigation are challenges to wills or property transfers that arise before a testator (the person making the will) passes away. Common reasons for initiating pre-death litigation over estate assets include allegations of undue influence, concerns over the testator’s mental capacity, or disagreements about the handling of property and assets.

Common Causes of Pre-Death Estate Litigation

Most often, pre-death estate litigation concerns broken promises or wills created by people who lack testamentary capacity. Other issues that may prompt pre-death estate litigation are:

• Committeeship orders for incapacitated testators;
• Power of attorney appointments and disputes;
• Advance care directives and their role in the broader estate plan;
• Proprietary estoppel and broken promises in a new will.

An Example From Case Law

In Linde v Linde (2019)  the BC Supreme Court ordered a father to leave his farmland to his son upon his death. The father, Kenneth, had promised his son Howard that in exchange for his years of low or unpaid work on the family farm, he would inherit the land when his father died. Kenneth and Howard had a falling out, and Kenneth changed his will, removing Howard as the beneficiary of the farm. Howard sued his father, claiming that proprietary estoppel barred him from disinheriting Howard.

The judge considered the promises Kenneth had made to Howard, the contributions Howard made to the farm, and the personal losses he suffered as a result of the broken promise. Ultimately, Kenneth was ordered to leave Howard the land in his will. However, Kenneth was given the right to live on the land and draw a modest profit from the land until his death. 

Issues to Consider Before Pursuing Litigation

Contesting an estate before the death of the will writer can be a lengthy and complex process. While it is beneficial to resolve disputes early, particularly in cases of broken promises or misrepresentations, it can come with significant challenges. Litigation can strain family relationships, incur substantial legal costs, and may fail if the court is unconvinced of the claims. Alternatives like mediation, estate planning reviews, or drafting binding agreements—such as cohabitation agreements or mutual wills—can address concerns without litigation. Consulting with an experienced estate lawyer can help you determine the best path forward in your circumstances.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.