We have prepared these questions and answers to help those who have been disinherited, or spouses or children who have been unfairly treated in a Will. If you are considering contesting a Will or have any further questions regarding estate claims, we invite you to contact us.
Which assets form part of an estate, and are distributed by a Will?
The assets that form part of the estate will depend on the individual’s estate planning during their lifetime. Any assets that the individual owned themselves such as their home, vehicles, and bank accounts often form part of the estate. If these assets are jointly owned with another individual, they may pass outside the estate. Other items like RRSPs or insurance policies with a designated beneficiary will also fall outside of the estate.
Do assets transferred [or given] to others during the deceased’s lifetime form part of the estate?
No. Any assets that are transferred [gifted] to someone else while the deceased is alive will not form part of their estate unless there were conditions attached to those transfers.
What happens to the estate if there is no Will?
The Wills, Estates and Succession Act outlines who will receive the assets in the estate when there is no Will. This is known as dying intestate. Who receives the assets will depend on which relatives of the deceased are alive.
Can a British Columbia lawyer help me with a Will that is not in this province?
It depends on where the person who died resided and if they had a connection to British Columbia. If they resided in British Columbia, or they had property in British Columbia then it may be prudent to speak with a British Columbia based lawyer, even if the Will was prepared elsewhere. However, if there is no connection to British Columbia then we do not take on cases that relate to estates in other jurisdictions as the legislation regarding Wills and estates is provincial.
Who can challenge the distribution of assets in a Will?
The only individuals who can bring this type of claim are the children (natural born and adopted) or spouse (married or common law) of the deceased. Grandchildren, ex-spouses and stepchildren cannot challenge the distribution of assets under a Will.
How long do I have to challenge a Will?
You have 180 days from the grant of probate to bring a Wills variation claim against an estate. Other types of claims may have longer timelines, but it is best practice to start your claim as soon as possible to protect your rights.
My loved one executed a Will under pressure, and it does not represent their wishes. What can I do?
If the deceased executed their Will due to undue influence, you can challenge the validity of the Will in court. Please contact one of our estate litigation lawyers to assess your claim in a free consultation.
What is a Power of Attorney?
A Power of Attorney is a document executed by an individual during their lifetime that gives power to someone else to manage their financial and legal affairs. Powers of Attorney can take effect at different times, depending on how they are drafted (for example, when the individual becomes mentally incapable).
What is required to draft a valid Will?
To draft a valid Will, the testator must have mental capacity, the Will must be in writing, and the testator’s signature on the Will must be witnesses by two or more people who also sign the Will. There are other requirements in the Wills Estates and Succession Act. It is best practice to have a lawyer draft your Will to ensure that your last wishes are carried out and that there is no ambiguity as to what you intended to happen to your estate.
My deceased loved one was aboriginal; does this change how their Will is treated?
If the deceased was aboriginal and ordinarily resident on reserve, the Indian Act may govern their estate. Please consult with one of our Estate Litigation lawyers to determine if this act is applicable to your loved one.
I have been named as executor in a Will, and the testator has died. What do I do now?
If you need help filing for probate of a Will for which you are an executor, please contact one of our Wills & Estates lawyers to discuss our services.
Glossary of Common Estate Litigation Terms:
- Executor: the person appointed to carry out the wishes in a Will.
- Trustee: the person responsible for managing property held in trust.
- Estate: all the money and property owned by an individual at the time of their death.
- Testator: the person who makes the Will (formal term for Will-maker).
- Beneficiary: a person who benefits from the Will.
- Intestate: when someone dies without a Will.
- Probate: the process by which the court confirms the Will to be valid, and probate fees are paid.
- Grant of Probate: the legal document authorizing an executor to manage the deceased’s estate in accordance with the provisions of their Will.