Estate litigation in BC is on the rise. Most of the litigation is due to unhappy beneficiaries. WESA (Wills Estates and Succession Act) came into force in March 2014 and consolidated many of the statutes and laws. Almost a decade later, we are now seeing the common law application of its changes.
What are the most common reasons to sue over an estate?
- The Deceased leaves an invalid Will.
- The Deceased leaves a Will but has not updated it to reflect their circumstances at Death.
- The Deceased leaves a Will and cuts out beneficiaries.
- The Deceased leaves a Will and the division between beneficiaries isn’t fair.
- The Deceased made transfers to beneficiaries in their lifetime that were meant for the benefit of others.
Who has the standing to sue if they are unhappy about a Will?
- Spouses – married or common law greater than two years.
- Natural children, even if the Deceased did not raise them
- Legally adopted children.
- NOT stepchildren; not ex-spouses, not siblings or parents.
Who pays for the litigation in a fight over an Estate?
Whoever is responsible for the reason to litigate. If the Deceased’s actions caused the litigation. (ie. failure to make a Will, a confusing Will that needs the court to straighten out, or failure to consider beneficiaries they had moral or legal obligations to include in their Will) the Deceased’s Estate pays the Litigation costs.
If one of the unhappy beneficiaries’ actions caused the litigation, they may be ordered to pay the Litigation costs. This is to ensure that it is fair for the other beneficiaries if there is at least one person that is unnecessarily driving up the litigation costs.
Are clients able to hire a lawyer based on contingency for estate litigation or do they need money upfront?
Usually, the client will retain a lawyer for a few hours to review the facts and give an opinion about litigation steps and the likelihood of success. That review and opinion would be on an hourly basis. At that point, the client may retain the lawyer on a contingency basis meaning the lawyer charges their legal fees as a percentage of what the client receives in the end.
The client will only have to pay the out-of-pocket expenses during the litigation itself – court filing fees, court reporter fees, and the like. The client and the lawyer may also choose to have a regular hourly rate retainer or a hybrid, where the rate is hourly or contingency, depending on the outcome of the case.
Working with a lawyer at the beginning of the case during the investigative stage means that these conversations happen early and are reduced to a retainer agreement, so everyone knows what to expect and there are no surprises.