1600 Cedar Hill Cross Road, Saanich, British Columbia V8P 2P6, Canada
phone (250) 382-2721 -- fax (250) 382-2921
integrity - experience - results
Recent Presentations
- Employment Issues for Employers: Union Club, March 24, 2010
- Pleading Estate Claims Under the New Rules: Continuing Legal Education Seminar, Pan Pacific Vancouver, October 24, 2011
- WESA (the Wills Estates and Succession Act) for Professionals: Ambrosia Centre, October 6, 2014
- Wills Variation Issues and Practice Update: Continuing Legal Education Seminar, Pan Pacific Vancouver, June 5, 2105
- Undue Influence, Joint Accounts and Estate Planning: Goward House, May 26, 2016
- Introduction to Estate Litigation: Victoria Bar Association, May 15, 2018
- Perspectives from a Litigator: Pacific Law Institute, Union Club, November 13, 2018
- Estate Litigation Update: : Canadian Bar Association (Civil Litigation Subsection BC), Union Club, February 20, 2019
- Estate Litigation Update: Canadian Bar Association (Wills Trust & Estates Subsection BC), Victoria Golf Club, March 19, 2019
Some of Patrice’s Reported Decisions
Zaleschuk Estate (Re), 2023 BCSC 523
Kolic Estate (Re), 2022 BCSC 1527
Heart & Stroke Foundation of Canada v. DeSantis Estate, 2022 BCSC 2408
Park v. Mitchell, 2022 BCSC 2180
Hall v. Hall, 2021 BCCA 115
Smith Estate (Re), 2021 BCSC 1753
Henshaw v Henshaw, 2020 BCSC 1379
Kellogg v Rouches, 2019 BCCA 90
Kellogg v Kellogg Estate, 2018 BCCA 490
Gibbons v. Livingston, 2018 BCSC 1452
Kellogg Estate v Kellogg, 2018 BCCA 15
TNT Industries Ltd. v. Yates Street Project Ltd., 2018 BCSC 592
Gibbons v. Livingston, 2018 BCCA 443
Kellogg Estate (Re), 2018 BCSC 1978
LeGallais Estate (Re), 2018 BCSC 388
Lamperstorfer v. Lamperstorfer Estate, 2018 BCSC 89
Lamperstorfer v. Wolf, 2018 BCSC 607
Tippet v. Tippett Estate, 2015 BCSC 291
Wilson Estate v. Wysoski, 2014 BCSC 675
Scott-Polson v. Henley, 2013 BCCA 428
Sangha (Re), 2013 BCSC 1965
Desbiens v. Smith Estate, 2010 BCCA 394
Desbiens v. Bernacki, 2008 BCSC 696
Ward v. Ward Estate, 2006 BCSC 448
Estate Litigation
Challenging and Defending a Will
Laws surrounding when and how a will may be challenged varies across Canada. In British Columbia, the Wills Estates and Succession Act (WESA) gives quite extensive rights to the children and/or the spouse (including common-law) of a willmaker to challenge the fairness or the validity of the will.
Many people refer to challenging the will on the ground of fairness as a “wills variation claim” meaning that the challenger seeks to have the terms of the will “varied”. Interestingly, BC is actually the only province in Canada that permits independent adults to challenge a will solely on a fairness basis. In the rest of the provinces, there must be some defect in the will before a court will intervene to assist an independent adult, such as cases where the willmaker was unduly influenced or coerced into making the will, or if the willmaker lacked the mental capacity to understand what they were doing when they made the will. In BC we see both kinds of challenges being filed.
The Will Isn’t Fair
It is a myth that a small-ish legacy in a willmaker’s will to his children or spouse will prevent the willmaker’s will from being varied by the court. A small legacy may be sufficient to satisfy the obligation that a willmaker owed to his immediate family, but depending on the circumstances, it may well be deemed by a court to be insufficient.
If the matter proceeds to court, a judge will assess whether the gifts under the will are within an acceptable range. The court looks at many factors, with society’s current expectations of what a willmaker should do being a very important one. The judge will weigh all factors, including the size of the estate, any gifts given to the heirs during the willmaker’s lifetime, and the nature of the willmaker’s relationships with his family members or other beneficiaries named in the will. While there is guidance in the common law, this is a highly discretionary area of law. In some circumstances, the court may decide that the terms of the will should not be varied, at all. The leading case in this area of law is a 1994 Supreme Court of Canada decision, Tatarynv. Tataryn, and since that time, many, many cases have been litigated in British Columbia and the law continues to evolve.
Needless to say, the death of a parent or spouse is a very emotional time for the whole family, even in cases of difficult family circumstances, including estrangement. Unfortunately, the law does not allow too much time for a disappointed beneficiary to decide whether to advance a challenge to the will. While the standard limitation period to start a civil claim in BC is generally 2 years, WESA imposes a very short limitation period. A claim must be filed within 180 days after probate of the will is granted. (Probate is an order issued to the executor of a will by the BC Supreme Court Probate Registry that enables the executor to deal with estate’s assets and liabilities, sometimes called “Proof in Common Form”). Failure to file the claim within this brief 180-day period bars a disappointed beneficiary from challenging the will on the basis of fairness.
The Will Isn’t Valid
If you have good reason to believe that the will in question is not valid, the process to determine its validity can take many forms. A will might be invalid if it is not done in proper form, if the willmaker lacked capacity, or if there was some coercion in the making of the will. Maybe there was a new will drafted but the willmaker’s former will is being presented to the beneficiaries as the “last” will.
If the executor of the will believes that the will is valid despite your objections, you can halt the probate process rather simply by filing a Notice of Dispute. The Notice of Dispute can be effective for up to a year, if there are no other actions taken by others to determine its validity. This is usually a good precautionary step to prevent dissipation of the estate assets by the executor while further evidence is gathered.
Other Estate Claims
As stated above, the death of a loved one is usually a very emotional time for a family, even in complicated family circumstances. When a deceased person leaves behind a will that may not be properly signed and/or witnessed, or if the terms of the will are unclear, then these threshold issues must be sorted out prior to any action that challenges the fairness of the will. Such is also the case if the will was signed by a willmaker that was suffering from mental decline or illness. These types of actions are called probate actions.
Sometimes there are very serious issues regarding significant gifts that the willmaker gave prior to his death. Just as in challenges to wills, these lifetime gifts can also be challenged if the evidence supports it. A typical fact scenario is when the willmaker’s attorney (under a Power of Attorney Agreement) seems to have dissipated the willmaker’s estate with no explanation. Unfortunately, the attorney quite frequently is also the executor, as the willmaker deems this person to be trustworthy, and the attorney takes advantage of that relationship to enrich himself to the willmaker’s detriment. Claims of this nature are called trust claims.
If you are the executor or a beneficiary under the will, you will be named a party to the probate action or trust claim, whether you agree with the challenge or not. If you are an executor, the role you play is more complicated, and you must be very careful to guard the assets of the estate in the face of a challenge. If you are a beneficiary and an executor, your role can be very complex.
In many cases, the parties will often have a common view to preserve the assets of the estate rather than allowing a costly legal suit to erode away the estate. However, unresolved, long-standing family tension and disputes often surface in the wake of a loved one’s death. Emotions run high, making these matters overwhelmingly difficult to resolve. In most cases, you will be well served by retaining an experienced lawyer to guide you through the litigation process. In most cases, with the assistance of your lawyer you will be able to come to an out-of-court resolution, and sometimes you will even be able to restore broken family relations.
Patrice’s Other Areas of Practice
· Estate Planning
Patrice assists her clients with their estate plans and with incapacity planning. She offers package pricing for wills, power of attorney agreements and representation agreements.
· Estate Administration
Patrice assists executors with the process involved in preparing probate applications and assisting executors with matters related to the administration of estate.
Sometimes individuals pass away without a will, meaning that an “intestacy” results. These situations can be quite complex, as a court order becomes necessary to allow a person to administer the intestate’s estate, who is then deemed the “personal representative” of the estate. Often, two court orders are required; one preliminary order to give a person the authority to obtain information about the intestate’s affairs, and then another to allow the personal representative to administer the estate or be issued “letters of administration”.
· Property Ownership Disputes
These claims seem to be growing in volume and involve the breakdown of understanding between parties with respect to the true, equitable ownership of real property, although only one or some of the parties may have actual legal title (as registered in the BC Land Title Registry). For instance, there may be an unwritten “Family Agreement” made, but when the agreement was made the parties failed to consider all of the various aspects involved in enforcing, maintaining or terminating the arrangement. At some point, the parties realize they did not, in fact, have a mutual understanding of the agreement, at all. Arguments then arise regarding promises made (or broken), proportion of ownership, loans, advances on inheritances, unjust enrichment, etc.
Patrice assists parties with avoiding these disputes by drafting agreements that properly captures the parties’ intentions, and she represents parties who find themselves involved in these disagreements, who must resort to the civil litigation system to obtain court-ordered remedies.
· Patients Property Act claims
These actions involve the guardianship and legal authority over incapacitated persons. These actions can be contested, which involve the court hearing evidence as to who is the best person to act as the guardian (known as the “committee”). Sometimes this will mean that the incapacitated person’s chosen agents, under a Power of Attorney Agreement and/or Health Care Representation Agreement Act Agreement may be replaced. As a result, these disputes are often highly emotionally charged.
Uncontested applications involve the appointment of a committee when the incapacitated person has reached the age of majority, or the incapacitated person has made no appointments, or the appointments they have made are not valid, or have become invalid.
Patrice assists parties in both contested and uncontested Patients Property Act disputes.
· Breach of Fiduciary Duty
Patrice litigates claims involving allegations that a fiduciary (usually a trustee or attorney) has acted wrongfully in relation to those to whom a duty is owed. These claims typically involve fact patterns involving an elderly person who entrusts another to assist with their financial affairs and is taken advantage of by that person.
· Employment Disputes
Employment disputes often arise between employers and employees upon the breakdown of the employment contract. If there is no justifiable reason to terminate an employee, the employer must pay the employee severance pay in lieu of notice. What is “justifiable” is a legal principle, and what constitutes a legal termination depends on the facts of the case.
Other issues that may arise in an employment contract, either during the course of the employment relationship or upon its breakdown may include human rights elements, non-compete clauses, intellectual property ownership, defamation, etc.
Patrice acts for both employers and employees.
· Construction Disputes
Acting for both owners and builders, Patrice has litigated many claims in her two decades of practice. This area of litigation is very detail oriented, and may involve issues related to the proper interpretation of contractual terms, cost overruns, change orders, holdbacks, builders’ liens and injunctions.
Patrice acts for builders, subcontractors, and owners.