Category: Wills, Estate Planning, Probate, & Administration

Information about wills, estate planning, probate, and estate administration. These blogs provide assistance and valuable information on the preparation of wills, powers of attorney, representation agreements, health care directives, trusts, estate planning, probating an estate, and administration of estates.

Challenging the Validity of a Will

/ Mark-John

What is challenging a Will?

If you believe a loved one wrote a Will while lacking the proper mental capacity to fully appreciate their actions, or if you believe that someone interfered in the writing of the Will, you may be able to challenge the validity of the Will to have the Will set aside.

Who can challenge a Will?

Only a spouse or child of the deceased can apply for a Wills Variation Action to vary a Will. However, anyone can apply to the courts to challenge the validity of a Will.

How can I challenge a Will?

A Will can generally be challenged for three reasons: invalid execution, testamentary incapacity, or undue influence.

A Will can be found to be invalidly executed if it does not conform to the rules set out in the Wills, Estates and Succession Act. For instance, a Will must be in writing, signed and witnessed by two individuals who are not beneficiaries of the Will.

Arguing testamentary incapacity means arguing that a Will is invalid because the will-maker lacked mental capacity and was not well enough to understand the nature of their actions in executing the Will. For instance, a loved one suffering from dementia may have lacked the proper mental awareness to have executed a valid Will.

Arguing undue influence means arguing that someone interfered in the will-maker’s autonomy and independence in drafting the Will, such that the Will does not reflect the true and free intentions of the will-maker.

What happens if I challenge a Will?

If the validity of a Will is successfully challenged, any previous Will written by the deceased will come into effect. If there are no prior Wills, the estate will be distributed in accordance with the Wills, Estates and Succession Act as if the will-maker died intestate, which means without a Will.

We hope that this article has given you a better understanding of the legal advantages of challenging a Will. Should you have any questions regarding your rights with regards to being left out of a Will, please give us a call at 604-449-7779 or fill out our general intake form and we will be more than happy to assist you.

What are the Requirements to Write a Valid Will

/ Mark-John

If you are thinking about writing a will, here are the formal requirements:

  • To make a valid will, you must be 16 years of age or older and mentally capable of doing so. You should know what property you have, who you wish to give the property to in your will, and how the property should be distributed amongst your beneficiaries.
  • The will must be made in writing, signed and dated at the end by the will-maker in the presence of at least 2 witnesses at the same time.
  • Your witnesses must be 19 years of age or older and not a beneficiary under the will. If a witness is a beneficiary, your gift to them may be void.

In addition to the formal requirements, you should include the following in your will:

  • You should designate an executor who will be responsible for carrying out your wishes.
  • Your will should contain clear provisions describing whom your property should be distributed to.
  • If you have minor children, you may appoint a guardian for your children in your will and consider creating a trust for your minor children’s financial needs.
  • Finally, you should include funeral and burial arrangements.

If you require assistance in drafting your Will or an Estate Plan or have any questions regarding the same, please contact M.J. O’Nions Lawyers & Mediators by email or telephone at 604.449.7779 and we would be happy to assist.

10 Tips You Should Know When Writing a Will

/ Mark-John

Are you thinking about planning your estate? Here are 10 tips you should know when writing a will:

1. Obtain the full legal name for all named parties in your will.

The will is a legal document and requires the full legal name of all parties named in the will. You should also have their addresses, birth dates and contact information available when you are preparing your will.

2. Carefully consider who you wish to be your executor

Your executor is someone you trust who can carry on your testamentary wishes. They can be a family member, a close friend, a lawyer, or a trust company.

It is always wise to appoint alternate executor should your preferred executor predecease you or is unwilling and unable to act as your executor.

You should also advise your executor of where you intend on storing your will.

3. Consider who you wish to be your beneficiaries and alternate beneficiaries

A beneficiary is someone who will receive assets from your estate upon your death. As much as we would like to plan for every possibility in a will, things do not always go as planned.

Consider how you would like your estate to be distributed and think about what will happen in the event that your preferred beneficiaries are not alive at the time of your death. If there are no beneficiaries alive under your will, the Wills, Estates and Succession Act will determine the beneficiaries.

4. Your will is not just about assets

Your will is not just about the distribution of your assets upon your death. Many other important decisions may be dealt with in your will such as appointing a guardian for your minor children.

Also, you may wish to create a trust for your minor children or grandchildren which a trustee will manage and administer until they reach a certain age. If you are responsible for someone who has a disability, you may wish to create a trust for them as well.

5. Not all your assets pass through your will

While the distribution of your assets is one of the key features of your will, some assets do not form part of your estate. For example, a life insurance policy or RRSP with a designated beneficiary does not pass through your will and therefore will not be subject to probate fees.

6. The will also addresses trustee responsibilities

The will provides your trustee with instructions on what they are authorized to do when they are handling your estate.

For example, your will can grant the trustee the power to pay off debts, taxes, mortgages and funeral expenses among other things.

7. Your will can include your funeral and burial arrangements

Determining your final resting place can be a difficult burden for your close family and friends.

By including funeral and burial arrangements, not only does it assist by providing your executor with clear instructions to carry out your wishes, it also alleviates the difficult and possible contentious discussions between your friends and family.

8. Your will must be witnessed by two people

When signing your will, two witnesses who are 19 years of age must be present and who are not beneficiaries of your will.

If a witness is a beneficiary under the will, the gift could be declared void.

9. Your will is not the only part of estate planning

Your will is an important document that is created to determine what will happen to your assets when you die. However, there are other key documents that form part of your estate plan.

A Power of Attorney gives a person of your choice the authority to act on your behalf on legal and financial matters when you are no longer capable of managing your affairs. A Representation Agreement allows you to appoint a representative to make health and personal care decisions on your behalf.

An Advanced Directive allows you to specify your wishes regarding health care and your preferences regarding treatment when faced with serious illness or accident.

10. Your “last will” can be updated should your wishes change in the future.

When estate planning, it is difficult to anticipate all the different scenarios that may occur in the future. Just because your will is called your “last will” doesn’t mean it is irrevocable. When you update or create a new will, you revoke any previous wills you have made in the past.

At M.J. O’Nions lawyers & Mediators we have extensive experience in drafting Wills and Estate Plans. Should you require our assistance in drafting your estate plan kindly give us a call at 604.449.7779.

Estate Planning – What is Estate Planning and How to Plan Your Estate

/ Mark-John

What is Estate Planning?

Have you ever questioned what will happen to your property upon your death or how it will be managed in the event that you become incapable of handling your own affairs? If yes, preparing a will and planning your estate is the route you should take to put these speculations to rest.

Estate planning involves determining what happens to your property upon your death or in the event that you become incapable of dealing with your affairs. Estate includes your assets, possessions, and money. An estate plan consists of a few legal documents stipulating your wishes upon your death or incapability regarding how you want your estate, financial affairs, and health wishes to be managed. These include:

Wills: A Will is created to ensure that your property is distributed according to your wishes on your death. A Will also specifies the person who will administer your estate, known as an executor. Having appointed an executor saves the cost of having a family member make an application to court to be appointed administrator of your estate. In addition, if you have children, your Will can specify who their guardian will be.

Power of Attorney: A Power of Attorney gives a person of your choice the authority to act on your behalf on legal and financial matters. An enduring Power of Attorney gives your Attorney the authority to manage your affairs beyond the point that you are no longer capable of managing your affairs.

Representation Agreement: A representation agreement gives a person of your choice the power to represent you in health or personal care decisions, or to manage your financial affairs in the event that you become incapacitated. We recommend that you use a Representation Agreement to appoint a representative for health and personal decisions only as your financial affairs can be dealt via a Power of Attorney.

Advance Directive: An Advance Directive specifies your wishes regarding health care in the event that you become incapable of providing these yourself. This document also indicates your preferences regarding treatment if you are faced with serious illness or accident.

How to Plan Your Estate – Estate Planning Checklist

  • Decide who your executor, a person who administers the Will, is going to be
  • Figure out how your estate will be distributed and who it will be distributed to
  • If you wish to make any cash gifts or charitable gifts, decide who the recipient will be
  • If you have a minor child, you may wish to appoint a guardian for your child in your Will
  • Mention any funeral wishes in your will (cremation or burial arrangements)
  • Decide who you will name as your attorney for a Power of Attorney (the term ‘Attorney’ is not to be confused with a lawyer)
  • Decide the person you will name as a Representative in your Representation Agreement

Estate Planning Attorney

If you are unsure about where to begin in the estate planning process, book a consultation here with Mark O’Nions. Mr. O’Nions has the expertise and knowledge to help you develop a comprehensive estate plan that meets your goals and objectives.

We hope this article helps answer your questions about how to make an Estate Plan. Should you have any questions or require help with drafting a will or estate planning documents, please contact us at 604-449-7779.

Contesting A Will – How To Contest A Will

/ Mark-John

In British Columbia the governing legislation dealing with matters of wills and estates is the Wills, Estates and Succession Act (WESA).

What are the grounds for challenging a will?

By virtue of s. 60 of WESA, where the deceased fails to ‘make adequate provision for the proper maintenance and support of the will-maker’s spouse or children,’ the courts may order that provisions it thinks are adequate, just and equitable in the circumstances, be made out of the will-maker’s estate. In other words, if a child or spouse believes that the will does not adequately provide for their proper maintenance and support, he/she may ask the court to vary the will seeking a redistribution of the deceased’s estate.

Can family members contest a will?

Yes, pursuant to s. 60 of WESA, will variation claims can be made by children or spouses of the deceased. Spouses, for the purposes of the legislation, include common law partners. Children, for the purposes of the legislation, include adopted children.

The claimant (the one making the claim to have the will varied) has 180 days (6 months) to commence an action from the date the grant of probate is issued. The claimant must also serve the notice on the executor of the will within 30 days after the expiration of the 180-day period.

Chances of successfully contesting a will:

The chances of successfully contesting a will depends on the facts of each case. But, as a general rule, if in fact, the will doesn’t make adequate provisions for the proper maintenance and support for the deceased’s child or spouse, then you have a strong case for challenging the will. Bear in mind, if you plan to commence an action, you must be one of the individuals legally entitled to bring a will variation action (i.e. child or spouse).

To give you a more accurate answer to the likelihood of your success, please contact us for an appointment so that we can assess your situation and advise you accordingly.

Average cost to contest a will:

The average cost will depend on the complexity of the situation. If the matter can be resolved between the parties without proceeding to a trial, this could substantially minimize the costs.

To provide you with an approximate assessment of cost that is specific to your case, please contact us.

Who pays to contest a will?

Generally the claimant bears the cost of challenging a will. If the claimant is successful in getting the cost granted by a judge, it would come out of the deceased’s estate.

Does the executor of a will have the final say?

The judge ultimately has the final say in a wills variation action. However, if the executor and other beneficiaries consent to the will being varied, then a judge would likely uphold the variation of the will.

We hope this article helps answer your questions about contesting a will. Should you have any questions or require help with commencing a wills variation action, please contact us at 604-449-7779.

How to Avoid Probate Fees

/ Mark-John

Benjamin Franklin once said “in this world nothing can be said to be certain, except death and taxes.” However, if he knew that Probate Fees must be paid in order to obtain a Grant of Probate or Administration, he might have added “Probate Fees” to his words. Was he wrong in not including Probate Fees to one of the things that are certain in this world? This article explores whether it is possible to avoid paying Probate Fees and if not, ways to minimize Probate Fees.

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What is Probate?

/ Mark-John

Have you ever heard phrases like “Probate an estate,” “Probate a Will,” “applying for Probate,” or “Grant of Probate”? Have you ever wondered what these phrases mean, whether they are referring to the same thing or whether they are referring to different things? If the answer is yes, you have come to the right place.

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New Brochure on What to Do When a Death Occurs in Your Family

/ Mark-John

For any family, a death is extremely difficult to cope with. Not only family members will be emotionally devastated by the loss of their loved one, but some families will find themselves financially impacted by the loss. Also, families are often puzzled on what they should do following a death. In order to help you in this very difficult time, we created the brochure to provide you with some of the crucial information you need to know when a death occurs.

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The New Wills Estates & Succession Act “WESA,” and what it means for British Columbians

/ Mark-John

I am often asked questions about succession planning and the difficulties with the rigidness of the legislation governing Wills & Estates. Frankly, some of the legislation goes back to the 1800s and really has not changed much since then. It is about time our laws reflect modern society. Well finally a new Act is coming into force on March 31, 2014. The WESA is replacing the Wills Act, the Wills Variation Act, the Estate Administration Act, Probate Recognition Act and a portion of the Law & Equity Act. So what does that mean for you? Continue reading →