Challenging an Unfair Will? 10 Answers to your FAQS
Losing a parent or spouse is painful, but when someone dies and the inheritance distribution leaves someone feeling left out and mistreated, stressful and often dramatic family confrontations are sure to ensue.
In British Columbia, the law seeks to comply with the wishes of the deceased. It assumes that a person in a relationship amasses wealth to enjoy with their spouse and provide for their children, thus exercising the will-maker’s moral duty — a concept we will explain below.
If you are a spouse or a child of the deceased and are disappointed in how you were treated in the will, suspect that the mental capacity of the will-maker (or testator) at the time the will was created was compromised, or that undue influences may have been exerted upon them, or have questions regarding the validity of the will, you should consult a lawyer about making a claim under the Wills Estates and Succession Act of British Columbia. But before you do, to make the most of your lawyer’s time, here are the answers to 10 of the most frequently asked questions we get:
An estate has various meanings at law, but for the purposes of a claim against a deceased person’s assets, it is all that a person owns, their entitlements, and their obligations.
The estate includes land, real property, money, investments, life insurance, loans in which the deceased was the lender, business interests, personal possessions, and any other assets the deceased owned. However, not all assets will go through probate — the judicial process that verifies a will is authentic. Instead, some will go directly to the beneficiaries or joint owners, as we will see below.
Probate is a legal procedure that ascertains the will’s validity under B.C. law; in other words, it proves whether or not the will is valid and was left by the deceased. Not all wills need to go to probate, however. For example, if an estate is worth less than $25,000 and is not comprised of an interest in land, probate might not be necessary.
The first step is to file an application with the probate registry. If there is more than one executor, they can all apply together, or one executor can apply and reserve the others’ right to do so later.
Once the court has determined everything is in order, it will issue a grant of probate confirming that the executor has the authority to act on the will. The executor can show this document as proof of authority when dealing with banks, land title offices, and other institutions.
Note that not all the deceased’s possessions are distributed by the will; jointly held assets (as could be the case in real estate properties, bank accounts, and automobiles) can pass automatically to the joint owner. Also, the proceeds of financial instruments like a life insurance policy or an RRSP would go directly to the beneficiary after the executor has properly informed the relevant parties of the will-maker’s passing.
3. What are the duties of an estate executor?
Being appointed as an executor of an estate is an honour and a responsibility. It can also be stressful and time-consuming, especially if the estate is complex, with many assets, investments, bank accounts, and beneficiaries, all with different requirements and steps, like filing tax documents. It would be wise to ask for a copy of the will and review it carefully — ideally before the will-maker passes.
Given the opportunity, it would be prudent to ensure the will-maker keeps a list of:
- Assets and debts, including bank accounts, investment accounts and stocks, insurance policies, and others.
- The contact information of lawyers and beneficiaries and any other agents or relevant contacts.