Challenging an estate – What you need to know.
Your loved one may have made a will or gifted property to another family member or friend under suspicious circumstances. Or you may be an executor of a will that is being challenged or a beneficiary of a gift that is being challenged. There are many ways to challenge a will or a gift:
Have you been disinherited or given less than another family member in a will? The law in British Columbia allows a spouse, including a common law spouse, or child, including an adult child, to challenge a will if the court believes that the will does not make adequate provisions for him or her. The limitation period to apply for wills variation is short—only 180 days after probate is granted to the executor. Contact a lawyer immediately if you believe you have a wills variation claim, or if such a claim is being made against you.
Lack of Capacity and Undue Influence
A will can be challenged if the will-maker lacked mental capacity at the time he or she made the will. The will-maker may also have been unduly influenced or pressured by a beneficiary into making a will that benefits him or her. In either of these cases, a court can set aside a will and replace it with a previous will or order that the assets be distributed according to the rules of intestacy, if there is no valid previous will.
Joint Ownership of Property
Just because a parent adds an adult child as a joint owner on a bank account or house does not necessarily mean that the child is legally entitled to the money or house on the death of the parent. The law presumes that if a parent gratuitously transfers an ownership interest in a house or bank account to an adult child, that adult child is holding the property for the benefit of the parent or his/her estate unless the child can prove that the parent intended to make a gift.
There are other disputes that can arise after someone has passed away:
Contested Passing of Accounts
Before an executor can finish administering an estate, he or she has to pass the estate’s accounts. Often the beneficiaries will consent to the passing of accounts and the executor can avoid making a court application. However, if one or more beneficiaries dispute a passing of accounts or one or more of the beneficiaries is a minor child or mentally incompetent person, then the executor has to make a court application to pass the accounts.
Misuse of Power of Attorney
Sometimes a person appointed as an attorney under a power of attorney misuses the funds for his or her own personal benefit. The person who granted a power of attorney is legally entitled to demand that the attorney account for the money the attorney spent on his or her behalf. After that person dies, a beneficiary of the estate can ask for an accounting. If you believe someone has misused a power of attorney, we can help you make a claim.
Unfortunately even honest attorneys are often not aware of the information and documents they are required by law to keep and make available. If you have acted as an attorney under a power of attorney and someone is accusing you of misappropriating funds, contact a lawyer to find out your legal obligations.
Our estate litigation lawyer, Jacqueline Sowa, has experience both representing clients who want to challenge a will or gift and defending clients who are being sued by a beneficiary or other party.