Introduction

A cursory review of legal texts could give the impression that this area of the law is subject to technical and sometimes dry legal principles which have changed little over the centuries. Practitioners of estate litigation, however, know that it is this area of the law which arouses many emotions. It is also one of the few areas of law which every person at one time has to deal with, either upon giving instructions for a will or upon becoming an executor or a beneficiary. Unfortunately, there is still a large degree of ignorance as to inheritance rights, but even more significantly, even once those rights are known, the passions can run so deep that otherwise non-combative individuals may find themselves in litigation.

Most lawyers practicing in this area have been asked from time to time by their clients whether there is anything that can be done when they find out about a will which treats them unfairly and the testator is still alive. Here, the answer is clear. There is no legal intervention which can be undertaken until the testator’s death. This ability of a person to deal with their property while he or she is alive is referred to as “testamentary freedom”.

In many jurisdictions testamentary freedom ends at death. In certain civil jurisdictions, the law mandates a percentage of the estate to be left to particular classes of relations. In common law jurisdictions (all Canadian Provinces and Territories except Québec) there is no such statutory regime. The closest British Columbia comes to statutorily mandated division of an estate is where a person dies intestate (i.e. without a valid will).

While the common law jurisdictions do not have a specific formula for estate distribution (which represents a restraint on testamentary freedom), they certainly do not embrace unbridled testamentary freedom. After the testator’s death, certain court ordered alterations in the testamentary scheme are permitted. As such, in the common law provinces there is a tension between freedom to do whatever one likes with one’s property and the interests of society in ensuring that this freedom is not abused. The law has developed reflecting this tension, which strives for restraints on absolute testamentary freedom.

One example of the restraint exercised over testamentary freedom is age. Generally, a testator must be 19 years before he or she has the legal capacity to make an enforceable will. There are certain exceptions such as under-age marriage and those situations known as “privileged wills”, which would apply to members of the regular Canadian Armed Forces, seamen, or those in the course of a voyage.

Today’s seminar will address a number of common estate disputes, and provide you with an overview of what claims may be made. The focus is on three areas:

1. Unfair wills – can they be challenged? (wills variation);
2. Estate administration – the role of the Executor or Trustee; and
3. Elder abuse – incapacity and undue influence.

The seminar presentation and these materials are not intended to be legal advice, but rather provide a brief description of common scenarios giving rise to estate disputes. If you have any questions or require legal assistance, please contact either Mark Weintraub at 604 643 3113, or mweintraub@cwilson.com, or Amy Mortimore at 604 643 3177, or aam@cwilson.com.