Fair Inheritance Book | Fair Inheritance | B.C. Wills & Inheritance Litigation
When a family member passes, invariably someone needs to take over the affairs of the deceased and ensure fairness in the distribution of the deceased’s assets. In deciding who should control the wind-up of the estate, the Will of the deceased will be the key document to review for the answer.
Estate Litigation, Wes Mussio, will dispute,
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Fair Inheritance: The Basics of Estate Litigation in British Columbia

 

These sections have been published online from the book Fair Inheritance: the Basics of Estate Litigation in British Columbia. To receive a free physical copy of the book, please contact the author and Estate Litigation lawyer, Wes Mussio at Mussio@MussioGoodman.com.

 

When a family member passes, invariably someone needs to take over the affairs of the deceased and ensure fairness in the distribution of the deceased’s assets. In deciding who should control the wind-up of the estate, the Will of the deceased will be the key document to review for the answer.

 

The unfortunate part is that families are often complex with plenty of infighting. Wills are seldom completely fair and for that matter, many people die without a Will. In the result, there is plenty of British Columbia estate that end up in litigation simply because the deceased did not expect to die and therefore, did not properly manage the way in which his/her estate will be distributed upon death.

 

This book is written as a general introduction for a person learning about estate matters for the first time. The language is simplistic and so the book is intended to alert the reader to potential issues in the wind-up of an estate. Ultimately, it is good advice to consult a lawyer on your particular issue before proceeding. The book contents, however, will alert you to some potential pitfalls so you can focus your efforts accordingly.

 

Ultimately, we hope this book will help you understand the estate wind-up process, so you have the necessary background to get a fair result from your family member as it relates to the estate of a love one.

Table of Contents 

(Click the section title to read it)

 

Wills, Estates and Succession Act

 

Chapter one: Considerations Before Death

As a loved one advances in age, the family members are often faced with dealing with the testators’ affairs or worrying about who will be included in the Will and who will not be included. This section of The Basics of Estate Litigation in British Columbia is intended to give a brief overview of some of the pre-death estate planning issues that often arise particularly with the aging testator.

 

What Can I Do to Stop My Parent from Gifting the Estate Away Pre-Death?

Split Family Dynamics

Revocation of a Will
Committeeship
Representation Agreements
Public Guardian and Trustee Considerations

 

Chapter two: Winding Up the Estate

The most important part of the estate matters is winding up the estate so that the beneficiaries can receive their money in a timely manner. Unfortunately, winding up an estate is no easy process and involves many complicated issues which often force the executor to seek out a lawyer for assistance. In this section of The Basics of Estate Litigation in British Columbia, you will find information on a wide range of issues that may arise in the wind-up of an estate.

 

What You Need to Know Before Administering an Estate
What Happens If the Testator Dies Without a Will

How to Compel Someone to Produce a Will

How to Compel Administration of the Estate
Notice of Dispute
Controlling or Taking Over an Estate

Removal of an Executor

Duty of the Executor to Account to the Beneficiaries
Passing of Accounts
When Can the Estate Proceeds be Paid Out to the Beneficiaries?
Getting a Court Ordered Advance from an Estate

 

Chapter three: Potential Assets of the Estate

Just because the deceased has assets in a variety of different portfolios, it doesn’t mean that all the assets form part of the estate for ultimate distribution under the Will. To the contrary, a large portion of assets actually are transferred outside of the Will and will never form part of probate. The following section of The Basics of Estate Litigation in British Columbia describes some of the assets usually found in estates.

 

Bank Accounts
Benefit Plans
Personal Effects
Real Estate
Real Estate Located Outside of British Columbia
RRSPs/RSPs

 

Chapter four: Will Variation Claims

British Columbia has unique legislation that allows a certain class of individuals to pursue a variation of the Will if the Will does not sufficiently provide for that individual. Will variation claims represent the most common litigation in estate litigation especially in ethnic communities where it is common to prefer one child over another in a Will. There is a moral and legal obligation on the part of the testator to provide for his/her spouse and/or children, so the Courts generally do not allow testamentary autonomy to take precedent over the moral and legal obligations of the testator to his/her family. The following section of The Basics of Estate Litigation in British Columbia provides some insight into will variation claims.

 

Who Can Apply to Vary a Will?
Who Must be Involved in a Will Variation Claim
Time Limits for Advancing a Will Variation Claim
Common Law Spouse
Disinheriting A Spouse
Disinheriting Adult Independent Children
Disinheriting Minor or Dependent Children
Stated Reasons for Disinheritance
Consideration of Pre-Death Gifts to a Beneficiary

 

Chapter five: Potential Other Avenues of Challenging a Will or Pre-Death Transaction

While a will variation claim is the usual approach to disputing the proposed distribution of assets under a Will, there are other avenues to pursue assets especially when you do not have legal standing to bring a will variation claim.  There are also legal avenues to pursue in order to increase the amount of assets that can be distributed under the Will. This section of The Basics of Estate Litigation in British Columbia provides some potential legal arguments to help increase the amount of assets received under the Will.

 

Pursuing the Return of an Asset Transferred Before Death
Suing the Power of Attorney for Financial Abuse
Challenging the Validity of the Will
Challenging Testamentary Capacity
Claiming Unjust Enrichment
Arguing Undue Influence

 

Chapter six: Legal Issues and Your lawyer

Whenever your loved one passes and issues surrounding the distribution of the estate need to be address, many families turn to a lawyer for legal advice because the family has very little expertise in the area and administering an estate can be rather complex. In addition, if there is a legal dispute over the estate distribution then lawyers become prominent. This section of The Basics of Estate Litigation in British Columbia provides some advice as to retaining a lawyer, dealing with a lawyer and terminating a lawyer.

 

Legal Fee Arrangements with Your Lawyer
Using Estate Funds to Defend the Lawsuit
Who Is Ultimately Responsible to Pay the Legal Fees?
Firing Your Lawyer

 

Chapter seven: Key Evidentiary Issues in Estate Litigation

The Basics of Estate Litigation in British Columbia is not intended to provide a long list of the various Rules of Court and civil court procedures to follow when presenting a case at trial. However, there are two significant and very important evidentiary issues that are very common concerns in estate litigation. This section of The Basics of Estate Litigation in British Columbia identifies these two key evidentiary issues.

 

Document Production in Estate Litigation Claims
Hearsay Evidence in Estate Litigation Claims