WILLS & ESTATE | ESTATE DISPUTES

Our lawyers have extensive experience in preparing Wills, Estate plans and resolving disputes.

Contact the solicitors at McQuarrie about preparing wills and estates in British Columbia. In addition to experienced wills lawyers, we can refer you to our estate litigators, who can protect your rights during challenges to wills and other estate arrangements.

You can learn more about how our lawyers can help you by reviewing the information we’ve included for you, below. If you have any additional questions about wills, our lawyers would be happy to answer them in a private consultation.

Wills & Estates

Our experienced wills lawyers can assist you with any part of drafting a new will or protecting your interests when you have been named in another’s will.

Making a Will

You should consider making or changing a Will in BC whenever you experience a significant change in wealth, or when a major change in your personal circumstances occurs, like a divorce or marriage. It is generally considered good practice to review your Will every few years in order to make sure that it remains relevant. If your Will no longer reflects your estate planning goals, then a new Will should be drafted. A new Will is also required if you decide to change beneficiaries.

It is important that you review your Will following a change in your marital status. Under the current laws in British Columbia, upon marriage, a Will is automatically revoked unless it states specifically that the Will was written in contemplation of the marriage. Similarly if you divorce after making a Will, unless there is a specific statement to the contrary therein, your ex-spouse is deemed to have predeceased you.

If you fail to create a will, you will die intestate. Intestacy is a term that is commonly used to refer to the estate of a person who has not made a valid Will at the time of their death.

If you die intestate, then the Estate Administration Act tells the Court how your Wills and Estate succession act will be distributed. In addition, the Court will appoint an Administrator who will manage the affairs of your estate. If you are leaving behind a child under the age of 19, then that child’s interest in your estate will be held in trust by the Public Guardian and Trustee of British Columbia until the child reaches the age of majority, which is currently age 19. At this time the 19 year old will be delivered the entire inheritance without conditions or supervision.

Being Named in a Will

If you are named in a Will, either as a beneficiary or an heir, a trustee, or an executor, you will need to know your rights and responsibilities. We can advise you on these rights and responsibilities under both common law and relevant laws in British Columbia.

Being a beneficiary entitles you to certain rights. Beneficiary is the term used to describe any person or entity that inherits property from an estate. Most beneficiaries named in the Will receive their assets once the Executor or Trustee is in a position to distribute the estate. In some cases where the named beneficiary in a Will is also deceased, the assets pass to another entity or person, referred to as contingent beneficiary.

Restrictions can be imposed to limit the individuals that qualify as a contingent beneficiary. Restrictions can also be included in a Will that limit what a beneficiary can receive based on certain criteria. Beneficiaries can also be named on assets that do not form part of the estate at death, including: RRSPs, RIFs and life insurance.

If your rights in the will in which you are named are being disputed, you need the assistance of our estate litigators. You can learn more about that in our estate litigation section.

We are able to advise and represent you in matters related to existing Wills, including the following:

  • If a will is written in a way that is unclear, ambiguous or contradictory and you need help interpreting the Will;
  • If there is no person who is able to administer the estate and you want to step in as the administrator;
  • If you are named as a beneficiary and a trustee, guardian or executor and you want to enforce your gift under the Will; and
  • If you are the spouse, common-law spouse, child or adopted child and you believe the Will is unfair or unreasonable and you want to challenge the Will

Our lawyers recognize that meeting a client’s needs often requires both compassion and legal guidance. From the simplest cases to the most complex. We’re here to help.

Estate Administration

Having a well-documented estate plan ensures that your estate will be distributed according to your wishes. To assist you, our experienced estate lawyers offer all of the services you need to be sure that your estate plan is as comprehensive and authoritative as possible.

If you are early in the process of developing an estate plan, our lawyers can give you the guidance you need to create one that meets your needs. We can help you draft all necessary documents, statements and arrangements, and additionally help you understand the risks of certain choices.

Our estate lawyers can help you establish various trusts, including but not limited to the following types:

Testamentary Trusts

Testamentary trusts are financial tools which are set up in those instances where a Will maker decides that a beneficiary of their Will is better served if a third party is assigned to hold onto the property that the beneficiary inherits. For example, testamentary trusts are often put in place for children or grandchildren who may inherit sizeable estates prior to reaching adulthood or even beyond.

Trusts of varying complexity can be established easily by our lawyers for trusts. They are always administered by a Trustee and regulated by the Trustee Act as well as the terms of the testamentary trust set out in the Will. Our estate lawyers can explain any terms and conditions.

Inter Vivos Trusts

We have experience in preparing the following Inter Vivos Trusts that may be an integral part of an individual or couple’s estate plan:

  • Family Trusts as part of an estate freeze and corporate reorganization
  • Joint Partner Trusts
  • Alter-Ego Trusts

McQuarrie’s lawyers for trusts have the experience required to manage all your estate planning needs. From the complex to the relatively simple, our lawyers for trusts are able to construct an estate plan that serves your interests and, by extension, the interests of your family. Let us arrange power of attorney, committeeship and other protections that will ensure your wishes are carried out even if you are unable to communicate them.

Arrange a private consultation with our estate lawyers, here.

Estate & Trust Disputes (Litigation)

In addition to helping you plan estates, our estate litigation lawyers can help you resolve disputes. Estate litigation is a specialized area of practice. It involves disputes among family members, friends and associates in the area of wills, ownership of property, and caring for the elderly or those unable to care for themselves or manage their personal and financial affairs. Estate litigation issues are not limited to matters that arise after a person has died but may also involve issues that arise before someone’s death.

Here is a list of some of the issues that can arise in estate and trust litigation:

  • Claims under the Part 4, Division 6 of Wills, Estates and Succession Act, by or against a surviving legal or common-law spouse, children, and/or adopted children, of someone who died with a valid Will that is considered unfair or unreasonable;
  • Whether a Will is valid;
  • Applications regarding the interpretation or construction of provisions in a Will;
  • Claims regarding the proper administration of a deceased’s estate by an executor or administrator;
  • Disputes over ownership of property in the case of resulting trusts;
  • Trust claims or trust litigation involving the true ownership of assets, such as bank accounts and property;
  • Breach of duty claims under a Power of Attorney or Representation Agreement;
  • Elder abuse, including financial abuse; and
  • Applications or nominations for committeeship to assist elderly persons or others who are unable to care for themselves or manage their affairs

Issues Related to the Ownership of Assets

At times, people in close relationships, and family members in particular, will enter into financial and non-financial arrangements to facilitate transactions, such as the purchase of assets. Often, the terms of their arrangements may be unclear and conflicts as to ownership rights may arise. You may have a right to a claim in unjust enrichment, and our estate litigation lawyers can help you enforce it. In British Columbia, a court may impose a constructive or remedial trust as a remedy in these types of situations.

We are able to advise and represent you in matters related to disputes over the ownership of assets, including the following:

  • If you agreed to purchase land with someone else and both of your names are on title, whether as joint tenants or as tenants in common, but there is now a disagreement over who owns the land and in what proportion;
  • If you contributed money to the purchase of a property but your name is not on the title of that property and now there is a disagreement over who rightfully owns the land and in what proportion;
  • If more than one person is listed as the holder of a bank account or a joint bank account and there is a dispute over who owns the money in the account;
  • If you made non-financial contributions to a house or property and now there is a dispute over whether you are entitled to a portion of the property;
  • If you received money or property but there is a dispute over whether it was a gift (these gifts may be considered a resulting trust);
  • If you have a dispute similar to those described above, but in relation to non-land property (e.g. cars, personal property, etc.) and there is a disagreement over the ownership of the assets; and
  • If you have concerns about the validity of inter vivos trusts or other trust documents

Issues Related to the Care of a Person

When your family members are healthy, they can understandably care for themselves and make important decisions. However, due to age, health problems, Alzheimer’s disease, dementia, or other reasons, a person may become unable to care for him or herself or unable to make important life decisions involving his or her financial and legal affairs. In these situations, an application to the court may be required to appoint a person(s) to make these decisions on their behalf.

This person(s) becomes the “committee”. We can help you navigate the adult guardianship laws that govern the care of incapable persons, including the Representation Agreement Act, the Health Care (Consent) and Care Facility (Admission) Act, the Adult Guardianship Act and the Patient Property Act.

Our estate litigation lawyers are able to advise and represent you in matters related to assisting people who become incapable of managing themselves or their financial affairs, including the following:

  • If a person becomes unable or incapable of caring for him or herself or making decisions related to his or her health care;
  • If you suspect an elderly person is physically, emotionally, or financially abused by another person and you need to know your options;
  • If there is an investigation into an incapable person’s finances by the Public Guardian and Trustee and you have the Power of Attorney or you are Committee and you want to know your rights and responsibilities;
  • If an application is made by someone to take control of the care of another and you want to challenge it; and
  • If a person has authority over the care and control of another person and you want to challenge their authority to act on behalf of that person

Issues Related to Elder Abuse

Often, as members of our family age or encounter health problems, they need assistance managing their personal, financial and legal affairs. Unfortunately, they are placed in a position that is also vulnerable to financial and emotional abuse or neglect by others.

When a person, such as an attorney under a Power of Attorney or a legal representative under a Representation Agreement, is entrusted with the care of another, the caregiver should act in the best interests of that person. In doing so, the caregivers must fulfill certain legal duties called fiduciary duties that are required of them to ensure the proper care of their ward. The duties and powers of these various individuals may be set out in legislation, such as the Power of Attorney Act, Representation Agreement Act or Trustee Act, or at common law or “judge made” law.

We are able to advise and represent you in matters related to the care of others, including the following situations:

  • If you are a caregiver and you are unsure of what fiduciary duties you must fulfill;
  • If another has alleged that you as a caregiver have not fulfilled your fiduciary duties and you need to know your options in responding;
  • If you suspect an elderly person is being physically, emotionally, or financially abused by another person and you need to know your options;
  • If you suspect a caregiver is breaching his or her fiduciary duties towards the person they are caring for and you need to know if you or someone else can intervene; and
  • If a person has authority over the care and control of another person and you want to challenge their authority to act on behalf of that person

Estate and trust litigation is a complex area of law. Our Estate and Trust Litigation Department has extensive knowledge, experience, and expertise to help you. As with any dispute, there may be sensitive deadlines in the Limitation Act or other legislation that you must meet to ensure that your rights are protected.

If you need our assistance, we ask that you not delay and contact our department chair, Jacy J. Wingson, QC:

Phone: 604-581-7001
Email: jwingson@mcquarrie.com

Alternatively, you may contact Ms. Wingson’s assistant, Dianna Seifried:

Phone: 604-580-7054
Email: dseifried@mcquarrie.com

More Information about Wills & Estates: