At Greig, Wilson & Rasmussen LLP, we handle a variety of litigation matters, and have done so for more than two decades. Two important areas of practice include “Wills Variation” cases (inheritance law), and “Trusts” actions, which are described below.
The British Columbia Supreme Court has the power to vary a will which fails to fairly provide for the deceased’s spouse or children. This authority comes from Provincial legislation known as the Wills Variation Act, (“WVA”), which permits the Court to review any will that fails to meet specific objectives. An offending will is one which does not make adequate provision for the proper maintenance and support of the testator’s wife, husband or children.
This law empowers “disinherited” spouses and children to “challenge” a will and seek a fair share of the deceased’s estate.
These cases must be brought promptly---within 6 months of probate. They are often complicated matters, but do not always result in trial. Often, after all the facts are known, the parties and counsel can negotiate a resolution. If not, the matter may require Judicial input.
WVA cases are almost invariably prosecuted on a “contingency fee” basis, meaning that the aggrieved complainant pays nothing at all until success is obtained and funds paid, and no fees at all in the event that the case is lost.
“Trust cases” on the other hand, are somewhat different, because the nature of these claims often arises not out of the death of a party, but the end of a relationship. As well, the authority upon which the claim is based comes not from Government legislation, but from established common law principles.
One example of a common law trust case is a claim by an unmarried spouse. These cases often arise when parties in a “common law” relationship separate, and find that they do not enjoy the property law rules that protect married folks. On separation, their assets (if any) are divided on the basis of equitable principles of trust law. In such circumstances, the contributions of the parties, any deprivation suffered by one party, and any enrichment enjoyed by the other party will be relevant considerations. Again, the evidence and circumstances will be key. Navigating the legal issues and important principles can be tricky.
Another example of a trust case would be a dispute that arises where parties to a financial project, joint venture, or business undertaking have not properly reduced their arrangement to writing. They have no written “contract” or agreement, yet they have a trust relationship which is contentious and controversial.
Other types of trust claims abound. One common example would be the dispute that arises when parents lend (or give) money to a young, married, adult child during hard times, university years, or to make a downpayment on a home. Later, when the young couple separates, there’s a dispute about whether the money paid by the senior parents was a gift or a loan.
Sometimes, a dispute will arise when an elder parent “gifts” assets (property or savings) to one child, and then dies. The surviving children who did not benefit from the “gift” and may feel cheated. Depending on circumstances, there may be reason to believe that such sentiments are legally justified. Recent case law from the highest Court in the country suggests that when a parent “gifts” assets to an adult child, the “gift” is actually presumed to have been advanced pursuant to a trust: the residual “equitable” interest in the asset did not pass to the recipient and remains an asset of the deceased’s estate.
No two cases are alike, of course, but the principles are often similar. In any event, if you have questions about a Wills Variation matter, inheritance law, being disinherited, or a trust/gift case, call one of our partners for a free consultation. Your initial visit with a partner has no obligations, but is covered by solicitor-client privilege, so you can openly explain your circumstances and get the advice you deserve.
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