The Intestate Will Dispute

Posted by docmo on April 11th, 2019

In 2014, a survey conducted province-wide by Mustel Group for The Society of Notaries Public of BC revealed that only 55% of British Columbian adults have a current and legal Will. Some more recent sources claim the number may be significantly higher. A Google Consumer Survey conducted in June 2016 throughout Canada revealed that of the 2,000 respondents, 62% did not have a Last Will and Testament.

When a person dies without leaving a valid Will, their property (the estate) is distributed according to the provisions set out in the Wills, Estates and Succession Act (WESA). WESA is the British Columbia statute that sets out the legal principles regarding the making and validity of Wills, the distribution of an estate where there is no Will, Will’s variation claims, and the Probate and Administration of estates. WESA became effective in BC on March 31, 2014, replacing the previous Wills Variation Act, among others. If someone died before March 31, 2014, his or her estate would be disputed under the Wills Variation Act, which has different rules.

When a person dies without leaving a Will this is called dying intestate. When someone dies intestate, their assets are distributed according to the provisions of WESA, in a specified order. This may or may not be a reflection of the deceased’s wishes since they are unknown without a Will.

To give you some idea of how WESA applies to a situation of intestacy, we can look at the following hypothetical example: John was a healthy 56-year-old man living in Burnaby. He had two adult children, aged 24 and 21, from his first marriage which ended in divorce in 1997. In 2005, John married Abby, and they have a 13-year-old son. John’s eldest children were living independently, while John, Abby and their son lived in the same house John had inherited from his father in 1986. The house, a modest 2-bedroom 1,600 square foot single family home, was valued at .2 million.

John was an avid jogger and ran two or three times weekly. In 2018, John suffered a sudden cardiac arrest during his morning run around Burnaby Lake, and his collapse went unnoticed for an estimated 20 minutes in the quiet morning hours. By the time someone found him and called the paramedics, it was too late and John could not be resuscitated.

Like many BC adults under the age of 65, John had not prepared a Will. Who then stands to inherit John’s estate and how much does each party receive under the law? This is determined by the provisions of WESA regarding intestacy.

If someone dies intestate, who determines the value of their estate?

“Estate” refers to the property the deceased owned at the time of death – which includes money (cash, bank accounts, investments), cars, real estate and anything else owned by the deceased such as jewelry, electronic devices, artwork, tools, books, coin and stamp collections, musical instruments, and other personal effects of value. As John died intestate, his assets will be distributed in accordance with WESA’s provisions because there is no Will to dictate otherwise.

The first step for John’s family was to apply for a Grant of Administration, so that his Will could pass through probate. According to WESA, there is an order of priority for who may administer the estate, if there are multiple applications. Some examples of eligible applicants include:

• The spouse of the deceased

• An individual nominated by the spouse of the deceased

• A child of the deceased

• A relative of the deceased, or

• If the deceased has no relatives, a Public Guardian and Trustee (PGT) may be appointed.

Abby and John’s eldest son from his first marriage, Graham, decided that they would cooperatively settle John’s affairs. They applied for Grant of Administration, and knew they had to apply for a Grant of Probate, because the estate included real estate (the house). Together with the family’s Accountant, they succeeded in establishing the value of John’s estate at .35 million. Shortly afterward, arguments started as Graham wanted his mother (John’s first wife) to receive a substantial share of the estate, while Abby was fighting to safeguard a sizeable inheritance for her 13-year-old son and establish a Trust Fund for his future education. The situation became volatile and Abby consulted a lawyer.

What are the rules for dividing an Intestate estate according to the Law?

Little did John’s family know, his estate would be distributed under WESA, and they would not have a say in the matter. If John had a Will, or they had consulted a lawyer sooner, disputes could have been avoided. Under WESA, the following would apply to John’s situation and family members:

When a married or common-law individual without children dies intestate, their entire estate passes to their spouse. This becomes more complicated when children are involved.

If an individual dies with a spouse and children, the spouse will receive the preferential share of either 0,000 or 0,000, depending on whether the children of the deceased are from the current marriage or a previous marriage.

Abby would be entitled to a 0,000 spousal allotment of John’s estate, provided that this preferential share is less than the value of the entire intestate estate. Any remaining value after the spouse’s portion is distributed evenly between the spouse and the deceased person’s descendants. This means that in John’s case, after the 0,000 spousal allotment, the remainder of John’s estate would be distributed evenly between Abby and John’s three children. John’s youngest son would have his share held in trust until he reaches the age of majority. Because John was divorced from his ex-wife, she will receive nothing.

This is a simplified version of what would happen under WESA. There are also other considerations such as who will live in the spousal home, ongoing legal obligations after death, such as child support, and payment of taxes, debts, and accounting fees. It is always advisable to consult an estate litigation lawyers with knowledge of WESA and its governing inheritance laws.

WESA also offers guidance where a person dies without a spouse or child. The determination of which family members will receive assets is set out in WESA, as far back as great-grandparents and cousins. In the event that the deceased has no children, parents, or other family members considered by WESA, the estate will go to the government. If you wish to leave your assets to someone other than a family member, having a valid Will is especially important.

Helpforme is the Personal Legal Services division of Hammerberg Lawyers LLP in Vancouver, BC. The firm’s Estate Litigation lawyers are highly-skilled negotiators as well as seasoned trial lawyers. Their goal is to help people through a difficult and emotional dispute, then lead them through a resolution process that restores their sense of justice.

Helpforme’s Estate Litigation Lawyers can handle your complex cases and inheritance disputes with a uniquely personal, empathetic client approach. Helpforme’s goal is to find an amicable solution among disagreeing family members that, if desired, unites divided families. While they are vigorous litigators, they also believe that many of the best solutions can be found outside a courtroom.

Helpforme offers Estate Litigation legal services on a contingency basis. Contingency-based fees simply mean that clients don’t have to pay any legal fees unless their case is positively resolved. Helpforme’s expertise covers: Wills and Estate Planning; Succession Planning; Trusts and Trust Litigation; Estate Probate and Administration; Committees and Adult Guardians; Disinherited Children and Spouses; Undue Influence and Incapacity; and Claims against Executors and Trustees.