Any lawsuit is an invasive process, estate litigation is no different
Contemplating litigation in an estate dispute can be a difficult decision. In almost all situations, those bringing claims against estates are forced to sue their family members. After a lawsuit is commenced, the old adage “it’s rude to talk about money” at the dinner table goes out the window. Money is certainly relevant to wills variation cases as all parties’ financial circumstances are relevant for the purpose of determining whether the testator adequately provided for his/her children or spouse in the Will.
The seminal case of Tataryn v Tataryn 1994 SCC 51 is really the benchmark for wills variation cases in B.C. This decision makes clear that it falls to the court to weigh the strength of each claim and assign to each, its proper priority. In doing so, there are a number of factors that the Court can consider.
The Court, in Dunsdon v. Dunsdon 2012 BCSC 1274, listed most of the factors that are considered, namely:
- Relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
- Size of the estate;
- Contributions by the claimant;
- Reasonably held expectations of the claimant;
- Standard of living of the testator and claimant;
- Gifts and benefits made by the testator outside the will;
- Testator’s reasons for disinheriting;
- Financial need and other personal circumstances, including disability, of the claimant;
- Misconduct or poor character of the claimant; and
- Competing claimants and other beneficiaries.
Implicitly, that means that the financial information of the parties is relevant for the purposes of the Court weighing the strength of claims against the estate. Practically speaking, all parties to a will variation lawsuit are subject to significant document and information production responsibilities. Income tax returns, earnings and investments of each party along with gifts from the testator are all relevant to the case and must be disclosed to the other parties.
If one party is shirking their document production duties, there may need to be a Court Application to order production. This takes unnecessary time and money for all the parties and the likely result is that there is less money in the estate to distribute to the beneficiaries at the end of the day.
In summary, any lawsuit is an invasive process. Estate litigation is no different. If you are thinking about bringing a claim or there is a possibility that someone may be bringing a claim against you in regard to an estate dispute, think very carefully about the consequences of having to provide personal financial and other information to the other parties. There may be other options available, such as early out of court resolution, which avoid significant and invasive document production.
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