Q: What is estate law?

A: Estate law deals with the management and distribution of a person’s estate (property) after that person dies. 

Someone must be authorized to act as the deceased's representative to deal with the deceased’s belongings, assets, taxes payable and even his or her bodily remains.

One well known concept of estate law is the will.  A will is a document that is usually prepared by a legal professional on behalf of the individual.  It sets out a person’s wishes for his or her estate after death.

Q. Should I do a homemade will to save money?

NO!!!

Homemade wills may appear to save money in the short term but unfortunately they often cause unintended difficulties after a person dies.  For example, many words have special meaning in law or there may unintended tax consequences after death.  It is very important to consult a legal professional to avoid the many problems that a home made will can cause.

Q: What is probate?

Probate is the legal process which is followed after a person dies.  This process is necessary to prove to the court the terms of the will, the assets of the deceased and the beneficiaries of the will.  Once these matters are proved, the court will issue a document known as Letters Probate which enables the legal representative (the executor or administrator) of the deceased person to legally distribute the estate property.

A properly prepared will helps to speed up the process of probate and the distribution of the estate.

Q: What is estate litigation?

Estate litigation is a legal dispute involving an estate.  Often it involves a legal action started by someone who feels he or she was not fairly treated by the deceased’s will.   It can also involve lost wills, actions to set aside a joint tenancy or similar legal actions.

For example, under the common law which we inherited from England, each person has the right to leave his or her property to whoever they wish.  In British Columbia, however, this law has been changed.  Here we are expected to provide for our spouses and children unless there is a very good reason to disinherit them.  Therefore where a spouse or child of a deceased person is left out of that person’s will, they may begin a legal action—that is known as estate litigation.

Q: Why would someone contest a will?

The main reason to contest a will is that the Deceased failed to meet his or her obligations to their children or spouse.

A less frequent reason is that the will was not properly signed. This includes wills that have been forged or wills signed by a deceased who was mentally incapable, suffering from delusions or under the improper influence of some other person.

Such cases are clearly very serious but they can often be difficult to prove because improper acts are usually done in secrecy so there are often no witnesses.

If a deceased person leaves a will which does not fairly divide the estate between his or her surviving spouse and children then there may often be a basis to contest that will. Such a will may be challenged by common law spouses, same sex partners and children, whether natural or adopted children.

A testator (person making a will) must leave a significant part of the estate to his or her surviving spouse. If the testator does not do so, the spouse may often successfully challenge the will. As well, a testator also has a moral obligation to provide for his or her children even if they are already self-supporting adults.

Estate litigation can often be particularly emotional because of the intimate relationships involved and the grief caused both by the death and the failure to be properly recognized in the will.

Q: Is it expensive to challenge a will? Do you take such cases on a contingency fee basis?

A: Estate litigation can be expensive because it often involves a great deal of money and a lot of animosity between the parties involved in the dispute. What is more, the chief witness is now dead.

In certain cases the client may be given a choice of either paying by the hour or on the basis of a contingency fee. Some clients prefer contingency fees because this means that no legal fees will be paid unless and until monies are recovered. It may also help to reassure them that they and their lawyer share the same interest.