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Every year in British Columbia slightly more than 30,000 people die, many of whom have some assets and debts (“an estate”) and a variety of personal and business affairs that they leave behind. How the assets and debts are administered and how the proceeds of the estate are divided will depend on whether or not there was a Will in place and whether or not the will conforms to the requirements of the law – more specifically the Wills, Estates and Succession Act – which was recently updated with the new Act coming into force March 31, 2014. If there is no Will in place, the deceased is said to have died intestate and the estate is divided according to the provisions of the Wills, Estates and Succession Act that govern intestate estates.
When a Will is properly crafted and adheres to BC Law, the costs and time needed to administer the estate are minimized. A well crafted Will ensures that the final wishes of the deceased can be honoured, that all of the deceased’s business/personal affairs and possessions are accounted for and that all of those who are entitled to benefit from the estate are considered fairly and benefit accordingly. Further, a Will gives guardians of minor children a say in who becomes responsible for those children in the event of their passing. While there are kits that may be used to craft a Will – it is generally advised that people get the advice and guidance of a lawyer with experience in drafting Wills to assist them in making a Will that is considered legal and unlikely to result in a dispute. If you need a referral to an appropriate lawyer to help you draft a Will for your estate, we would be happy to assist, just contact us.
Unfortunately, some British Columbians die without a Will (intestate) or with a Will that fails to conform to the Wills, Estates and Succession Act. When there is no Will, or when there are grounds to dispute a Will, most beneficiaries need to talk to a lawyer who can advise them on their right to benefit from the estate and how to make a claim to get their fair share of the proceeds from the estate.
Here are four reasons that often give a person grounds to dispute a Will in British Columbia:
1. Next of kin were left out of the Will (either intentionally or unintentionally). If a person who should be a next-of-kin beneficiary (generally spouses and children) of an estate is left out (either intentionally or unintentionally), those persons may have grounds to dispute the Will.
2. Similarly positioned beneficiaries of the Will were given significantly different shares of the proceeds of the Will. If a next of kin beneficiary was left a significantly different share of the estate, without good reasons, that person may have grounds to dispute the will. For example, if one brother got 90 percent of the estate and the other brother was left with 10 percent of the estate for reasons that are either unclear and/or unfair, the disadvantaged brother may have grounds to dispute the Will.
3. Joint property was left to another beneficiary by the deceased. Joint home ownerships or joint accounts automatically become the property of the surviving owners as they have a “right of survivorship”. As such, joint property that is bequethed in a will to another beneficiary gives the surviving joint property owner a ground to dispute the Will.
4. A Will changes the beneficiary of a Life Insurance policy. Life insurance policies have their own designated beneficiaries and BC Wills respect that. If a person is aware that they are the designated beneficiary of the deceased’s life insurance policy, however a Will that was made subsequent to the policy indicates a different recipient of the policy’s benefits, the designated beneficiary has a ground to dispute the Will.
It is important to note that a Will is often just one part of an overall estate plan as there are other ways a person can transfer property in the wake of their death that fall outside of the purview of a Will. Prior to making any claims on an estate or disputing an existing will in British Columbia, it is best to consult a lawyer with expertise and experience in British Columbia Estate Law who can advise on whether or not you have grounds for making a claim under the specific circumstances faced and best enable a person to get their fair share of an estate.
If a will doesn’t exist, the assets will be distributed according to the Wills, Estates and Succession Act (WESA). WESA has specific rules for dividing the property of a person who died without leaving a will. If you find yourself eased out of the distribution when you should be part of it under the WESA, let an experienced lawyer help you make a claim.
BC Vital Statistics Agency
Making a Will and Estate Planning, The Canadian Bar Association
Wills, Estates and Succession Act