British Columbia Estate Disputes

Litigate or not?

Are there any other options for estate litigation?

Estate litigation involving the assets of a deceased person usually ends up in a court with legal proceedings. However, experienced lawyers can resolve the litigation through informal mutual negotiations among lawyers or through third-party mediation in a structured way. It is the most cost-effective way of avoiding expensive estate litigation, and you can save time as well. By going ahead with litigation and not opting for negotiation or mediation, you are only increasing the time and costs involved until the court decides on the trial.

Does estate litigation imply going to trial?

You can file a notice of civil claim with the court to start litigation or a lawsuit. The court takes the final decision on the suits at the end of a trial. There are many steps from the filing stage to the final hearing or going to trial, which should be the last resort if everything else fails. In most cases, out of court settlements are common where parties settle the case before trial with proper negotiations or mediation. In this manner, resolving estate litigation is faster and cost-effective than deciding to go through the litigation to trial.

Do I need a lawyer for estate litigation?

Estate litigation needs comprehension of complicated legal concepts and usually involves intricate court procedures. Essentially, the entire process is quite technical and requires specialized knowledge of the law, which is impossible to handle without an experienced lawyer's help. Although you may proceed without a lawyer, a professional lawyer with practical experience can help you in the process.

What should I do if the executor does not follow the wishes of the deceased?

If an executor does not work in the estate's interest or wilfully delays the administration, the beneficiary can apply to the court for getting the executor removed. The court has the power to appoint an administrator in such cases. Suppose the court has a conviction that the executor's behavior is unreasonable, it can immediately engage an administrator who can be one of the parties of the litigation or an independent lawyer unaffiliated to any of the parties. It can also be a professional administrator like a trust or a company. The purpose of appointing an administrator is to ensure proper management and conclusion of the estate's assets in the best possible way without unnecessary delays.

But what if the will is unfair. Who can challenge it?

Only the spouse or children of the deceased can challenge a will based on the grounds of unfairness. In some instances, matters like whether someone is a legal child or spouse of the dead need a decision before proceeding with the challenge based on an unfair will.

When will a court find that a will is unfair?

The court may take cognizance of several facts to decide on such cases. After considering many factors and understanding the situation specific to it, the court may or may not allow a challenge to the will. If the court finds grounds to believe that the legacy is unfair to one or more persons, it can decide in their favor. It usually happens when a deceased person treats the children differently or does not sufficiently provide for the spouse.

The court may consider many factors before deciding whether the deceased was unfair to a child or the spouse. For instance, a deceased parent may exclude a child from the will because the child had already received enough money or assets when he/she was alive or the child had estranged from the deceased parent for a long time. In such a clear case, the court may decide that it was fair for the deceased parent to exclude this child from the will. Such issues are usually complex, and the court needs to consider the facts specific to each situation. Sometimes, the case may seem clear to everyone concerned, but it may get complicated after considering other factors.

What can I do if I think I have reasons to challenge a will?

First of all, contact an experienced estate litigation lawyer. A professional lawyer in the field of estate litigation can quickly decide if there is a justifiable basis for you to challenge the will. The lawyer can also give you an estimate of the kind of money you need to spend if you go ahead with such a case and give you some practical tips to help you make the right decision. Since the legal procedure of going forward with estate litigation in such circumstances is quite complicated, it is usually best to take the advice of a capable lawyer. A lawyer can help you challenge a will, whether it is due to unfairness, incapacity, or undue pressure.

Can I challenge a will after getting probate?

The court may decide to grant probate, which essentially means that the will is perfectly valid, and there is no reason not to execute it. The executor or the administrator can go ahead with the distribution of the assets as per its terms. Before granting probate, the court must give prior notice to every beneficiary, even the potential beneficiaries. Any of them can file a notice of the dispute to stop the process of granting probate until the court resolves the conflict.

The executor can only distribute the estate assets after the court grants probate on the will. Although it is technically possible to challenge even after probate, it is always better to challenge it before granting probate. It is in your interest to start the dispute at the earliest possible, no matter the probate has been granted or not. It would be best if you began without losing any time to ensure that the executor has not already distributed the assets among the beneficiaries. You may be able to save on legal costs and avoid complex procedures by acting on time.

Estate Disputes BC 1665 Ellis St #301C, Kelowna, BC V1Y 2B3