Estate litigation covers those situations where people come to court to determine their rights with regards to an estate. It is a form of civil litigation.

As with all civil litigation, the first important decision if you believe you have been wronged is to decide if your claim is worth bringing or, if a claim has already been made against you, how to set the stage to bring the claim being made to an end.

Take, for example, a claim by one of three children to the monies in a joint account with a family member or friend who has died. Are they entitled to the monies in the joint account upon the family member or friend's passing?

This question leads to the following inquiries: What are the facts behind the creation of the joint account? Do they establish that the deceased family member intended to make an immediate gift of the monies in the account to this one child at the time the joint account was created or upon their death? Do the circumstances under which the joint account was created result in a presumption that no gift was intended?

An analysis of these questions requires an assessment of the events both leading up to and subsequent to the creation of the joint account.

This review is followed by a consideration of the evidence available to establish the facts which support your claim or defence. How easy or difficult will your claim be to prove or defend?

Once the facts and the evidence to prove those facts have been considered, a decision as to what to do becomes a cost/benefit analysis based upon the prospective cost of bringing or defending the claim, the amount in the joint account and the downside risks of having costs to pay the other side in the event the claim or defence fails.

I have over 40 years of experience making these assessments and helping clients make good decisions when faced with the need to bring or defend a civil claim.

For further information on the law of gifts please see our article "When a Family Member or Friend Dies in British Columbia Having Made Gifts to Adult Children Prior to Their Passing"

Estate Litigation – Estate litigation covers those situations where people come to court to determine their rights with regards to an estate. It is a form of civil litigation.

Removal or Passing Over – A person who has received notice or is to receive notice of an application for the issuance of a representation grant may oppose such issuance by filing a notice of dispute in the form and within the time set out in the Supreme Court Civil Rules. The process therein set out also applies to opposing an authorization to obtain estate information.

Citations – If a testamentary document is or may be in existence, a person interested in the estate may serve by personal service on each person named as an executor therein a citation in the form and within the timeframe required by the Supreme Court Civil Rules. The purpose of the citation is to require the person served to apply for a grant of probate in relation to that testamentary document.

Proof in Solemn Form – in order to prove that a will is a valid and subsisting will an application will be made to the court to prove the will in solemn form. On such an application the person putting forward the will must prove the formality of the will, that the will-maker had knowledge and approval of the will and that the will-maker had testamentary capacity.

Curing Deficiencies – In certain circumstances, even though the making, revocation, alteration or revival of a will does not comply with provincial legislation, the Supreme Court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective.

Rectification of Wills – The Supreme Court may order that the will of a deceased person be rectified if the court determines that the will fails to carry out the will-maker's intentions in certain circumstances.

Variation of Wills – If a will-maker dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker's estate for the spouse or children.

Executor's Accounts – The personal representative is required to pass his or her first accounts within two years from the date of the grant of probate or grant of administration, and thereafter as directed by the court unless all the beneficiaries consent or the Supreme Court orders otherwise.