Who Is Entitled to an Estate?

When Do You Have the Right to an Estate? | Klein Lawyers

For any family, the loss of a loved one represents a tragedy. Although we all hope that this traumatic event would bring surviving loved ones closer together, the unfortunate reality is that disputes between family members can outlive the deceased.

One of the major sources of contention after a death in the family is who gets what. The more significant legal question, however, is who is entitled to what.

If you believe your loved one failed to distribute his or her estate equitably, you may be able to dispute the terms of the will. A Vancouver wills variation lawyer can help you file a claim and pursue your fair share.

What Is an Estate?

Most people think of large mansions and sprawling grounds when they hear the word “estate.” However, for the majority of families, the estate represents much more modest holdings.

In legal terms, an estate may include:

  • Property, including one or more residences, land, commercial properties, etc.
  • The money in bank accounts
  • Stocks, bonds, annuities, and investments
  • Life insurance policies
  • Personal possessions
  • Vehicles

The goal of a will is to distribute the assets that make up the estate. Both individuals (including family members, friends, business associates, etc.) and organizations (including charities and other groups) are commonly named as beneficiaries in a will.

Although a testator (the person making a will) has latitude in dividing his or her estate, the distribution is subject to certain legal requirements. In British Columbia, the Wills, Estates and Succession Act (WESA) requires testators to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children.”

Are Spouses and Children Entitled to the Estate?

Generally, the courts in British Columbia recognize the rights of the children and the spouse of the deceased to some portion of the estate. The central question in wills variation cases is what constitutes “adequate provision for the proper maintenance and support.”

In answering this question, the courts may evaluate the following:

  • Do the spouse and children meet the respective legal definitions to have a valid share in the estate?
    • Ex: To be considered a spouse, the person must be married to the testator at the time of his or her death or in a “marriage-like relationship” for a minimum of 2 years prior to death.
    • Ex: Only natural and adopted children have the right to maintenance and support. Stepchildren do not have this right.
  • Did the will-maker have sufficient testamentary capacity to make a legally valid will?
  • Was the testator subjected to undue influence, resulting in a will that failed to make adequate provision for his or her spouse and/or children?
  • Was the partition of property in the will unjust?

While acknowledging the rights of spouses and children under the WESA, courts in British Columbia also recognize that the legal and moral duties of a testator must be balanced with the freedom to distribute an estate according to his or her wishes. As the court wrote in the landmark wills variation case Tataryn v. Tataryn Estate:

“A will is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.”

With this in mind, simply disagreeing with the provisions of your loved one’s will is generally not enough to succeed in a wills variation claim. You must be able to prove (a) that you are entitled to support and maintenance from the decedent’s estate and (b) that your loved one’s will fails to provide the necessary maintenance and support.

What Happens to the Estate If a Loved One Dies Without a Will?

When someone dies intestate (i.e., without a will), the WESA requires the following:

  • If the decedent leaves a spouse but no descendants (i.e., children), the estate passes to the spouse. In the event that two or more spouses have a claim to the estate, the spouses must come to a mutual agreement on the distribution of the estate. Failing this, the probate court will determine the distribution of the estate to which the spouses have a share.
  • If the decedent leaves a spouse and children, the spouse is entitled to the household furnishings (i.e., objects and items that improve the habitability of a shared home) and a “preferential share” of the estate.
    • The monetary value of a preferential share may be higher or lower depending on the relationship of the spouse and children to the deceased (i.e., are the children direct descendants of the spouse and the deceased) and the net value of the estate.
  • If the decedent leaves descendants but no spouse, the estate passes to the children.
  • If the decedent leaves no spouse or children, the estate is distributed to the following parties in descending order of succession:
    • Surviving parent(s) of the deceased
    • Surviving sibling(s) of the deceased
    • Surviving grandparent(s) of the deceased AND/OR Surviving aunt(s) and uncle(s) of the deceased
    • If applicable, surviving great-grandparent(s), great-uncle(s), and/or great-aunt(s) of the deceased
  • In the absence of the family relations listed above, the estate passes to the government of British Columbia (per the Escheat Act).

Intestate estates must go through the probate court before they can be distributed. Probate courts will generally attempt to dispose of the estate equitably. However, if you believe that you are entitled to a greater share of your loved one’s estate, you may be able to file a claim disputing the decision of the probate court (NOTE: this is distinct from an action for wills variation).

Are You Entitled to a Share of an Estate?

The loss of a loved one is difficult. Discovering that your relative’s will does not provide the maintenance and support to which you are entitled can lead to a number of additional financial and emotional challenges.

At Klein Lawyers, our Vancouver wills variation lawyers are committed to fighting for your fair share of a loved one’s estate. We will thoroughly evaluate the will, the decision of the probate court, the assets to which you have a claim, and more to build a strong case on your behalf.

Please call Klein Lawyers at (604) 874-7171 today for a free consultation. Our wills variation lawyers serve clients in Vancouver, Surrey, Abbotsford, Burnaby, Coquitlam, Langley, and all of British Columbia.