- Recorded on: October 27, 2020
- Length: 60 minutes
Lawyers Amy Mortimore and Zachary Rogers answer common questions about contesting a will in BC — who can do it, how it’s done, and other options beyond going to court.
Amy Mortimore is a lawyer at Clark Wilson LLP in Vancouver. She is the co-chair of her firm’s estate and trust practice group. Her practice includes all types of estate and trust litigation, including wills variation claims, incapacity and undue influence claims, applications to approve a document as a will even where it was not properly witnessed, and applications for rectification. Amy is very committed to legal education and regularly presents to lawyers and other professionals on estate and trust topics.
Zachary Rogers is a lawyer at Clark Wilson LLP in Vancouver. He maintains both a litigation practice and a solicitor’s practice, exclusively in the areas of wills, trusts & estates, and elder law. Zachary recognizes that his clients want practical, cost-effective advice and solutions tailored to their unique needs, and he is committed to finding creative and appropriate solutions to resolve legal disputes.
In this webinar, you will learn:
Three ways a will can be challenged in British Columbia, namely undue influence, lack of capacity, and wills variation. [3:50]
What factors a court in British Columbia will take into account when asked by a spouse or child of a will-maker to vary a will. [7:30]
What suspicious circumstances or red flags may signal undue influence, including changes to a will made shortly before death, large gifts to a non-family member, and vulnerability of the will-maker (such as impaired mobility or capacity resulting in dependence on another person). [9:35]
How a set of facts may give rise to more than one basis to challenge a will. [13:00]
What red flags to look for in a claim for lack of capacity. [15:20]
An example of a situation where there could be both a claim that the will-maker lacked capacity and a claim to vary the will. [16:40]
How filing a notice of dispute puts a halt to the estate administration process and allows time to investigate a challenge to the will. [17:30]
What factors to investigate when you have concerns about a will-maker’s capacity. [18:35]
What factors a court in British Columbia will consider when deciding whether to vary a will in favour of a spouse or child. [19:50]
Who is considered a spouse and who is considered a child having the right to ask a court in British Columbia to vary a will (you may be surprised!). [26:00]
Who else can challenge a will and on what bases they can challenge. [27:50]
Your options besides going to trial and why you might consider mediation instead. [29:25]
What you can do now to prevent a fight after you’re gone. [37:20]
What happens if property that would be part of the estate is sold under a power of attorney before the will-maker dies. [42:00]
What your rights are as a common-law spouse in relation to a home owned by the will-maker and household items you purchased together. [45:10]
Whether a court will set aside an entire will if there is undue influence. [47:40]
What happens to an estate when an entire will is set aside. [49:10]
What children from a first marriage might do where property owned in joint tenancy passes to the will-maker’s spouse. [50:50]
Whether property that passes outside of a will (e.g., via joint tenancy) will be considered in a claim to vary a will. [52:15]
Whether it’s recommended for a will-maker seeking to disinherit a spouse or child or treat them unequally to explain why in the will. [54:30]
"Exceptional info as my husband and I are preparing to prepare our wills. The moderator is a key part of the value of the webinar."
“Thank you for bringing this important info to our communities — your time (free!) is wonderful and really appreciated!”
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Resources from Clark Wilson LLP:
From that blog: "Traditional Indian Values Meet Contemporary Standards: How the Courts Address Inequality In Wills", which addresses how the court deals with cultural considerations in a wills variation action
Resources from People’s Law School: