Family disputes over the estate of a loved one can add significant emotional and financial distress to what is already a challenging time. Often, these disputes arise because the deceased did not have a will or because the will was drafted without proper and clear language.
In British Columbia, drafting a will with unambiguous, precise legal terms is paramount in ensuring that one's intentions are properly followed and that no family disputes arise over the estate. In order to understand how our Wills and Estates practice group can best serve your needs, it is important to first outline the common causes of family disputes over a will.
Why Do Family Disputes Over Estates Happen?
While the hope is that family members will respect the wishes regarding the estate of a loved one, this is frequently not the case. The most common causes for disputes over an estate are as follows:
1. Lack of a Will: Passing without a will (known legally as intestacy) causes the estate of the deceased to pass to family members in accordance with a strict legal formula, governed by the Wills, Estates and Succession Act, SBC 2009, c. 13 ("WESA"), which cannot account for contrary wishes that the deceased might have had during their life. This can only be changed with the assistance of the court, if at all possible. The same applies to a will is that is not in the proper form and might not constitute a proper will according to WESA.
2. Ambiguous Language in a Will: If a will does exist, but is not properly written with sufficient clarity, disputes may arise over the estate. These disputes will ultimately result in estate litigation which could cost the estate a substantial amount in legal fees to resolve.
3. Expectations of Family Members: WESA allows the spouses and children of the deceased to apply to the Supreme Court of British Columbia to vary a will if the will does not properly provide for their maintenance and support. In some cases, a wills variation claim can lead to the will itself being set aside or varied by the court. It is accordingly critical that a will-maker draft their will with these requirements in mind and having proper regard to their family structure (especially in cases where families are blended).
Family disputes can occur for any number of reasons; however, the existence of a clear and proper will can go a long way in preventing these disputes from happening on the death of a loved one.
The Role of a Clear Will
A clear will can precisely identify multiple critical factors in estate administration, ultimately eliminating many of the possible avenues for dispute. Some of the essential information included in a properly drafted will includes:
1. Specific Contents and Beneficiaries of the Estate: The "who" and the "what" in a will are critical. Providing a detailed description of the gifts made in a will can eliminate ambiguity about what precisely is being gifted and to whom. With the contents of the estate clearly understood, the individual family members to whom gifts are made can better understand their entitlements.
2. Clarifying Intentions: A lack of a will or a poorly drafted will may lead some beneficiaries of an estate asking "why" they are receiving what they are receiving. During the estate planning process, the will-maker is able to explain their decisions regarding the distribution of their property, thereby removing confusion about the will-maker's intentions. This is especially important if the distributions are unequal or could be considered to be unfair.
3. Identifying Beneficiaries in Complex Family Structures: The increase of divorces or separations in British Columbia bring along with it a number of complex family structures to be accounted for in estate planning. A properly drafted will can navigate the complexities of a modern family structure and deal with any confusion in situations where an estate might, for example, be left to children from different marriages.
4. The Role of the Executor: Executors are responsible for ensuring that the wishes of the will-maker are properly fulfilled through the administration of the will. This can be a complex process that requires detailed knowledge of the will-maker, their estate, and their family situation. For these reasons, the appointment of a trusted, dependable individual (who is wiling and able to act as such) to the role of executor is imperative for the timely and painless administration of an estate after the will-maker's passing.
5. Special Provisions for minors and disabled family members: The selection of guardians and the creation of trusts for minor children, providing them with income and capital from their trusts until they reach a certain age and the creation of trusts to care for disabled family members are essential in many wills and need to be carefully designed by the will-maker in consultation with his advisors to meet the will-maker's particular situation and challenges
With these, and many other, considerations in mind, creating a will may seem like a complicated process. Fortunately, it does not have to be this way.
How to Start Planning a Clear Will
The will planning process is always worth starting early and can be initiated with an honest self-assessment of one's wishes for how their estate will pass on to their family.
After this initial assessment, our office will gladly assist you in preparing a will which will not only ensure that your wishes are articulated, but also that the will complies with the necessary legal requirements to ensure its validity at the time of your passing. Our team will also discuss various other estate planning and incapacity documents with you during this process to ensure that you can move forward with peace of mind.
Ultimately, estate planning is about more than a distribution of property. If done properly, it is an opportunity to eliminate a source of stress among grieving family members, and to ensure that your legacy continues after your death.
If you or a loved one are currently or thinking about creating or updating your will, our expert team of professionals would be happy to assist you with all your estate planning needs. Contact our office today to book a consultation with a member of our team.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.