Dispute Resolution
Estate Litigation
With an in-depth knowledge of Estate Law and a focus on providing fair solutions, Boughton Law helps families and companies resolve estate related disputes such as challenges to wills and the appointment of representatives.
Boughton Law’s Estate Litigation Practice Group helps you navigate the complexities of estate management during a difficult period for you and your family. Unfortunately, even though a person may have been thorough in their estate planning, disputes can still arise, even before a person has passed away. We’re committed to providing fair, well-informed, and compassionate guidance on matters relating to the appointment of a representative, challenges to a valid will, and claims based on statutory rights to vary the terms of a will. Our goal is to ensure that a deceased’s estate is properly accounted for and distributed according to both their wishes and to the law.
We represent heirs, beneficiaries, estate representatives, and individual or corporate trustees to help resolve disputes and bring or defend claims in court if necessary. We also help family members obtain the appointment of a representative in the event that a person becomes unable to make personal or financial decisions without assistance.
Some of the dispute resolution services we offer include:
- Assistance when there is a question of whether the deceased had the required knowledge or mental ability to make a will or dispose of property
- Advice when allegations that the deceased was subject to improper influence are made
- Advice on the proper interpretation and meaning of the words used in a will
- Helping to resolve disputes when spouses and children of the deceased invoke their statutory right to vary the terms of a will in their favour
- Advice on disputes where the appointment of a representative is challenged
- Advice on disputes where the proper handling of a an estate is challenged
- Advising estate representative about their legal duties and responsibilities while estate accounting
We work closely with the lawyers in both our Wills, Trusts, and Estates Practice Group as well as our Tax Practice Group. Together, our team brings a comprehensive and in-depth knowledge of estate law to help you resolve any disputes with dignity, expediency, and fairness.
Boughton Law is unique because we are part of Meritas®, a global alliance of independent, full service law firms. With access to firms operating in over 230 markets worldwide, we can draw upon the expertise of trusted foreign legal advisors and even provide referrals if needed.
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The following is general information only and is not intended as legal advice for any specific situation.
Undue Influence
- What is undue influence?
- Legally, undue influence occurs when one person’s act is not their own but essentially that of another person. The influence of the other person is so extensive that anything done by the person (such as writing a will or transferring property) is not really their own act. This is very difficult to prove.
- What are some possible signs that someone has been unduly influenced?
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- Gifts made to someone that are out of the ordinary,
- An unwillingness to attend meetings or interact with others without this other individual
- Drastic changes to longstanding estate plans or wishes.
Capacity
- What is the legal test for mental capacity to make a will?
- Legal capacity to make a will is actually a fairly low threshold. Essentially, a person must know the extent of their assets and who should benefit from their estate.
- If a person has a mental illness does that mean they lack the mental capacity to make a will?
- No, not necessarily. Depression, or a diagnosis of schizophrenia or paranoia do not automatically mean a person lacks mental capacity to make a will.
Validity of a Will
- What are some of the reasons to question the validity of a will?
- In broad terms, a will made in British Columbia must meet certain technical requirements such as:
- it must be in writing
- it must be signed at the end by the will maker
- it must be signed in the presence of two witnesses
- the witnesses and the will maker must all sign in each other’s presence
- Who can challenge the validity of a will?
- Almost anyone who has an interest in the estate. This would include beneficiaries under the will, beneficiaries under a previous will and persons who would otherwise inherit if there was no will.
Wills Variation
- Can a court change the terms of a person’s otherwise valid will?
- Yes. The law requires a will maker to take into account the interests of the will maker’s spouse and children.
- What can a child or spouse do if they feel the will is unfair?
- Any spouse or child who feels they have not been treated fairly under a will can ask the court to vary the will to make provision for them under the will.
- Under wills variation laws are there specific amounts that the will maker must leave to their spouse or children?
- No, it is entirely a question of fairness and the Court’s interpretation of fairness on the particular facts and circumstances of each case.
- Is there a time limit for a person to make a claim to vary a will?
- Yes. Proceedings must be brought in court within 180 days of the grant of probate.
- Can a person who is not a spouse or child apply to court to vary a will?
- No. Claims to vary a will are limited to spouses and children. Grandchildren, brothers, sisters, nieces, or nephews have no standing to apply for a variation of a will. (Although they may have standing to challenge the basic validity of a will. See above).
Transfer of Assets Before Death
- Is there any way to make a claim if some or all of the will maker’s assets have been transferred out of the will maker’s estate before their death?
- Yes.
- What are some indications of possible improper transfers?
- Some questions to ask are:
- Was the transfer intended to be of real ownership or was it merely for convenience?
- Was the transfer the result of undue influence?
- Was the transfer or gift consistent with the will maker’s stated or known intentions?
