Meta Description: Estate litigation in BC is on the rise. FH&P Lawyers explain how to prevent costly court battles with better wills, valuations, and communication, especially for business-owning families in the Okanagan.
Estate litigation in British Columbia often begins where planning ends—when families are left to interpret unclear wills, disputed valuations, or unequal distributions of assets. In this episode of FH&P Lawyers' Law Talk podcast, hosts Clay Williams and Tanvir Gill welcome Darren Kautz, head of litigation, to share real-world cautionary tales drawn from years of navigating estate disputes.
From family business conflicts to missing Bitcoin and misunderstood asset values, the conversation underscores one key theme: communication and proper planning are critical to avoiding costly legal battles. Whether you're preparing your estate or facing a dispute, this episode offers valuable insights for anyone looking to protect their legacy in BC. Let's get into it.
Clay: Hello, everyone, and welcome to another edition of FH&P Lawyers' Law Talk. I'm Clay Williams. I'm a partner at FH&P. And, with me as usual, is my co-host Tanvir Gill. Welcome Tanvir.
Tanvir: Hi.
Clay: That's it. Hi?
Tanvir: Hi. Yeah.
Clay: Okay.
Tanvir: And did you miss me? I was gone for a week.
Clay: Oh, were you?
Tanvir: Mexico.
Clay: Oh, were you?
Tanvir: Yeah.
Clay: Oh, no.
Tanvir: Okay. You didn't notice?
Clay: No, I should have, probably didn't, I didn't hear you from down the hall, but anyway, let me introduce the topic today. We've got an interesting topic on cautionary tales in the context of estate litigation. First of all, I'd like to introduce our guest is Darren Kautz, who is the head of our litigation department. Welcome, Darren.
Darren: Thank you. Good to be here.
Clay: So, what does that mean to be the head of litigation at FH&P Lawyers?
Darren: It's just a fancy title. I just show up to work and help the water department.
Clay: Oh wow. Okay. Yeah. How many litigation lawyers, or lawyers, who do litigation in the firm now?
Darren: So right now we have 12 lawyers, including myself, who practice in the litigation area. And we're able to help you with a broad range of different areas of law.
When Estate Plans Fail: How Disputes Arise
Clay: And so, of course, this month we are trying to focus on estate litigation and estate planning, hence the topic. So today you're gonna scare us a little bit, with some of the things that come across your desk and how you are faced with things that go wrong, and result in estates being litigated.
Darren: Yeah, usually I've been told in the past by clients that love having me as their lawyer, but tell me at the end of it, I hope I never have to call you again. And that's part of our tale today: that if you get to see me, something has gone awry, and it's not going well for your case or for whatever's happening.
It's the same thing with the estate litigation now. So if you do a good job of pre-planning, you can avoid having to go to court. You can avoid having to get a litigator like me, and you can avoid having to fight with potentially other beneficiaries. The first way we go about doing that is by making a will, and that's a good first step, but that's not the only step that you need to take.
The next step that you need to look at is how do I make sure that the assets all get passed on to my beneficiaries in a good fashion, in a good form. Now, today's topic is the estate valuation and the cautionary tales. How I'd like to start with this is, have you guys ever seen the Allstate mayhem guy?
Clay: Absolutely. Yeah, you bet.
Darren: So his tagline is, get Allstate to be better protected from mayhem, like me. So in that same fashion, if you don't have an estate plan in place, then get ready for mayhem with Darren Koutz and FH&P estate litigators. Now, we're going to walk through some steps today to help you and your loved ones, when they pass away, to make sure that there's no dispute afterwards, and a common item that is left in a will can be something like real estate or a home.
Now, when that happens, the people often will look at trying to get valuations done. You don't have to do evaluations at all times on items, but it can help to have discussions with your family.
Clay: It's communications, I think, isn't it?
Tanvir: Anyone can draft a will. That's not hard to do, and it's something that mom and pop, younger families start with a simple will, but you have to understand what is the value of what you have, generally speaking, and approximately what that will look like at passing.
So you can do a will. Anyone can do that, but if you don't really have a good conceptual idea of what's gonna be flowing down, then just a will alone won't help. You want to know everything you're investing in. Your real estate, what you have sitting in company assets, what you have sitting digitally, all that type of stuff will factor into what's going to happen, whether you have a will or not.
Valuations, Misconceptions, and Family Fallout
Clay: Yeah. One of the things I saw in your notes was the misconceptions. And I think that one of the things you wrote in your notes was that, at times, there are real differences in opinions about what some of these assets are worth. And what happens then? They come to start fighting about it.
Darren: That's right. Yeah.
Clay: And what can you do, Tanvir, what can you do to prevent that before somebody passes?
Tanvir: A good—like you mentioned—a will maker, having a good conversation with family. If that's something you can do at that stage. Not everyone wants to have this discussion, right? It's going to be situationally dependent, but having a very clear sort of discussion with family on what you have and what the intended flow is going to be.
A lot of the problems that I will see, and a lot of the clients that I have, it'll be family businesses, so it might be a multimillion-dollar business that's operating vastly, but not all the kids are involved. So, if everyone isn't on the same page on what's gonna happen, and kids think that we should all equally get something out of this business. But some are involved in the business, and some aren't. That's just not what's going to happen, right? You're gonna have people with hurt feelings. So if you can have clear conversations and a lot of good planning, and that involves a lawyer, that involves an accountant, that involves a lot of different professionals sitting together to look at a bigger picture in terms of what you have and what the intended goal is.
Clay: When you're saying that, it made me think that you probably wouldn't get involved in the Williams type of things because you just fight over like, single wide trailers and things. So you're talking about to about people with actually quite a bit of assets.
Tanvir: I don't generally see too much happening in terms of you having one house and you pass, and that house is being split between your two kids.
At that point, what would they be unhappy with? The price of the house when you're trying to sell it and split the proceeds 50/50, then you can go have an appraisal done. So there's minimal sort of issues in terms of those types of scenarios because I think people are cognizant that the more you fight and go back and forth on an estate that is already small, that money is just going to us and yeah, we don't always mind, but we try to avoid having that in terms of saying, sit down at a table and have that discussion and see what can be done. And, it could be as simple as a $400 appraisal. So the real big issues I see are where there's a lack of planning and a lack of foresight when it's a bigger sort of estate, and a lot more money on the table.
Clay: And I guess that it's not gonna be a $400 appraisal if you're talking about business?
Tanvir: No. This is like if we have a house. If you have a business—
Clay: Yeah, somebody who's been in the business might have a very different idea.
Communication and Clarity: The Best Estate Planning Tools
Tanvir: If you have a family business and some of your kids are involved and some aren't, and you've never talked to your children about the fact that you expect this business to continue forward with some of those children continuing to operate it, that's a basic conversation that you should have. A lot of people will say to me, 'At that point, I'll be gone, so I don't care. They can fight it all they want, but I don't think they will.' It's always shocking that people think that, because the fights do happen.
Clay: I think it's especially with men. Like a lot of guys, I think there's something about if I retire, I'm gonna die. But then that just leaves a mess for everybody. Okay. So, when those conversations don't happen, what happens? What is the process? What kind of cost are these people going to suffer if they don't have these communications?
Darren: Sure. As Tanvir said, it depends on the value of your estate as well. So when clients come in, the first question is, what is the value of the estate? Because I have to be forthright with clients when they come in because if they are dealing with a $300,000 estate, legal fees nowadays are extremely high as soon as we start entering into the courts.
So you have to have a frank discussion with people, saying, you're fighting over a $300,000 home and the value of that, even though you disagree that it's worth more or less or whatever, may not be worth it to push this forward, fully into court. You might have to take other steps like setting down a mediation, or having just a simple conversation with the council for the other side to say the value of this estate is just so low, but it depends largely on the value of the estate.
Once we start getting into larger estates with businesses and valuations, then it becomes more complicated. Often in those matters, people start digging their heels in a little bit, and that's where the mayhem ensues, right? So, once you start getting into the mayhem of a very complicated and high-value estate, lawyers get retained, appraisers get retained, and specific experts get retained. And again, remember that those are costly. The courts will require specific expertise from these experts as well. They don't just qualify anybody. So Clay can't come in and start saying. I know about homes, and I own a home, so I can give you the value of this.
We need specific people, and that is very costly as well. So as you progress through the litigation stages, you will hire more people, and you'll get more experts involved. We'll bring different types of applications as well, depending on the type of claim. Is it a will variation claim? Is it a dispute over a capacity claim? Was there coercion? All kinds of things can come into play.
Clay: But expensive at the end of the day.
Darren: Very expensive. Again, the cautionary tale is to try to do your best to have these discussions with your children or beneficiaries in advance. It might not stop the disputes later, but it might curtail them a little bit so that everyone understands what's happening.
Especially with the businesses, over the years I've dealt with many companies, large companies that have had one of the children involved in the business, and two of them that are not; the two that are not think that dad's business is worth $10 million. The child in the business understands there are debt obligations, there are share obligations. Some loans are outstanding. So he or she understands that working in that business that the business is only worth $3 million. But the other two beneficiaries are saying, Hey, what are you telling me? It's $3 million. Where's all the money going? So again, frank discussions with all of the beneficiaries can stop that, so that they understand.
The Role of Documentation and Professional Guidance
Clay: I guess another thing that I would think that you must see is I know that there's other assets that aren't disclosed, and do you have any advice to people on that? If we're talking communications lists, and I know that you guys use checklists, and yeah. It just seems to me to be a good idea to be writing things down. Yeah. I know we've got the checklist, but—
Tanvir: Then what? Yeah.
Clay: Actually, why don't you explain what the checklists are for?
Tanvir: Here at the firm, one of the things that we do to start off any client with a new estate file is generally to share a checklist with that client.
They're welcome to fill out this checklist. It's eight or nine pages long, and it asks a number of different questions in terms of what the assets are, personal information that we need no matter what, where you were born, et cetera. If you've been married before, if you have children from previous marriages, a blended family, etc.
Then it gets into assets. What type of assets? Do you have mortgages? Does anyone owe you money? Do you owe anyone money? These are all the different questions that we ask.
Clay: Where do you bank at?
Tanvir: Yeah, it's quite extensive. And so we ask clients to try to go through it, fill it out if you can. If you can't, that's okay. But generally, on an initial wills consultation meeting, we go through that checklist with the client. And, more often than not, my clients will take one of those home, and then I tell them just to keep it updated. Because you can do a will and have, you know that plan put together for when you pass.
But if you don't have anything clearly laying out where you bank and what you have, what you know, do you have a safety deposit box? Where is it? Do you have online WestJet dollars or airplane miles? You're really going to be sending your executor on a bit of a fishing expedition to figure out what you have, and where you have it if it's not laid out somewhere.
Clay: Especially if one of your kids is the executor, that would probably create some suspicion in certain circumstances.
Tanvir: Yeah. So like for example, with my mom for example, I know everywhere she banks, I know. What her passwords are, 'cause I've had to help her create this master list, because every other day she's forgetting what the passwords are.
Clay: Shout out to your mom, who was our very first listener, by the way.
Tanvir: Yeah, our number one listener! So I have created something like that for her. If you don't have anything laying out where you have certain assets, then it is going to be difficult.
Clay: What are the major ones, at least..
Tanvir: A lot of my clients will have money invested with an investor, which is not something super common. It might be a little bit of a smaller investment firm somewhere. And unless that's written down somewhere, it is hard for your executors to locate that after you pass. They open up all your mail, they try to go through your computer and all that.
Darren: And from a litigation perspective, by the time you get to me, I then have to go to the courts to ask for an accounting order. If we believe that the executor has not complied with their duties or has not proceeded fairly, we're sometimes behind the eight ball by that point because assets have been removed, things are gone out of the estate, and we're fishing at that point.
So, a lot of my clients come to me and say I know that this was here, and this account had this much—
Clay: What happened to Dad's coin collection?
Darren: Yeah. There was a hundred thousand dollars of Bitcoin that was on a cell phone somewhere and my response is, okay, we will go in and ask for an accounting order to try to get access, but if I don't know where the cell phone is, or I don't know where the coin collection has disappeared to, it's almost impossible for us at that point to do anything.
Clay: Yeah. That's a tough one. Yeah. So I guess the point is communication. Any other war stories you wanna share?
Darren: We've had so many disputes over the years when it comes to these larger corporate estates, many of the files get into issues where the one child is involved in the corporation and through the fight over the years—because remember a lot of litigation takes three, four years, so we're tied down. If you come in as a client, you're going to be with me for many years. It takes a while to get court dates, takes a while to get discoveries, and to get proper accountants, and hire experts.
Clay: Meanwhile, the estate is shrinking.
Darren: That's right. Which again goes back to our initial conversation about the size of the estate will dictate my advice to the client.
Clay: So again, you're not gonna see a Williams, we might get really angry about the single wide, but—
Darren: That's right. But not worth fighting over.
Tanvir: But people still do it.
Clay: Do they?
Darren: They definitely still do it. Yeah. And I give the advice that I don't recommend that you proceed with the dispute, and they still say I don't care. I want to proceed.
We have one right now where the value of the estate might not cover all of the litigation expenses, but because people get entrenched in their positions and they get unhappy with each other as siblings, they just do it out of spite sometimes. And that is the most unfortunate part as a lawyer, when you're seeing the families fall apart.
Clay: Well, that's a good plan. We like to think we're doing good. And certainly, this communication, this is where this asset is, this is what it's worth. That if you can would certainly, hopefully take some of that acrimony.
Darren: Absolutely. Look, our firm has been in the Okanagan Valley for over a hundred years. We're here to help the local families, people across BC, and we want to make sure we're doing right by them, and they're doing right by everyone else. If we can. But at the same time, we have our obligation, our duty to help our client to get what's theirs.
And I was mentioning, a big dispute nowadays is the businesses. I see just more and more cases where one child is involved, they know the business very well, and the other two don't. Or three or four or however many kids, and it turns into a fight where we're having to educate the other beneficiaries through the litigation process. So rather than dad telling all the kids about this is how the business operates, this is what the money is, these are our debts, they find out through the litigation process and discoveries.
Sometimes I have the other parties, where we're in discoveries, they're like, really? Oh, aha. Aha moment. Where they're like, I didn't understand that there was $300,000 in share debt.
Tanvir: Yeah, I think that the biggest takeaway here is don't bury your head in the sand. Get the advice early, get the appropriate advice from a lawyer, and really talk through what that estate looks like, and what the best way is for you to move forward and plan appropriately. Whether that's an estate that has one house, a few houses, or an estate that's larger, a family business and something much more business-oriented and larger generally.
Don't bury your head in the sand, get the advice early, and speaking to a lawyer with the knowledge and the background in estate matters is going to help you to be able to appropriately use all the professionals.
People don't realize how many other professionals are going to be involved in an appropriate estate plan. From Accountants to insurance brokers. There are so many different things to consider. And yeah, I think the worst case is just not doing anything at all and just continuing to operate the way you have been
Darren: And being fluid as well. I like that term, and I picked that up actually from a lawyer years ago in estate litigation, where if you are fluid in your estate planning and your estate, even the litigation process. It will make everything easier. You can't just put your head in the sand or dig your heels in and say, this is it.
Tanvir: Yeah, 'They can deal with it when I'm gone'
Darren: Right?
Clay: Yeah. That's just, that's the wrong answer, isn't it?
Tanvir: But, so many people think that's just it. It'll be fine. Surely enough, they can fight all they want when I'm gone.
Clay: Yeah, and that's an expensive mess. Yeah. Alright everybody. Thanks for tuning in, and make sure you ask us questions. If you ask us questions, we will endeavour to answer them. So the takeaway, keep this outta Darren's hand, Darren Kautz, the head of our litigation department. Thanks for joining us! We'll see you next time.
Estate litigation can be costly—financially and emotionally—but many disputes are avoidable with the right planning and honest conversations. Whether you're drafting a will, navigating complex business assets, or facing a legal challenge, FH&P Lawyers is here to guide you.
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.
