Estate Litigation:  
When You Get Left Out of the Will 

Estate litigation is that thing that happens when someone feels ripped off about what they thought was going to be their inheritance. 

Because in estate litigation, the parties most often know each other and are most often part of the same family, such cases can be intense. 

Estate Litigation:  It is family law, only there is a dead body added to the mix

Estate litigation can be very intense. This is because, just like in family law, the parties to the litigation most often have personal (and we are not judging here, but often dysfunctional) family relationships. Unlike, let's say a motor vehicle collision, where one stranger hits another with their vehicle, in estate litigation, the parties are likely to be related by blood, or at least by marriage. Let's look at Joe our mechanic friend's story.

The story goes something like this. Let's say Joe is the youngest of four children. He is now 30 years old. Joe has always been the black sheep in his family. His two older brothers and sister have very successful careers. One of his older brothers has taken over the family's law firm when their Dad retired. The other older brother is a renowned psychiatrist. Their older sister is a dental surgeon. 

Joe, on the other hand, is a mechanic. Joe has always loved to work with cars, engines, and other mechanical things like old radios. Although Joe was never "book smart" he has always great with his hands. Nobody can fix a mechanical object like Joe can. Unfortunately for Joe, his parents did not think that Joe's kind of intelligence was important. They preferred the intelligence of his older brothers and sister. 

The other thing is that Joe is not the most financially savvy. Unlike his older brothers and sister, Joe has been unable to save his income. He has not made sound financial decisions. Joe also has three children and is separated from his wife. Because his wife has mental health challenges, Joe is the primary parent for all four of his kids who range in age from 10 years old to 16 years old. 

Joe's Mom passed away many years ago. Within six months after her passing, Archibald met Trixie online. Trixie is 30 years Archibald's junior. Trixie and Archibald married each other in Vegas one month after they started dating. One thing that Trixie always made clear to the entire family is that she loved Archibald deeply and although she imagined he had wealth, it was not his in his wealth she was interested. It was her love of Archibald.

A month ago, Archibald passed away after an illness. Archibald was suffering from intermittent bouts of dementia. He was 75 years old.

Joe has been looking forward to his share of Archibald's estate. Although Archibald never shared much with Joe about his finances, Joe anticipated that his share will be at least $1,000,000. This would be the case even if Archibald was to give Trixie a 1/5 share in his assets. Although Joe was not necessarily waiting for Archibald to die, he knew his Dad's death would give him much needed financial relief when he received his inheritance. Although his other siblings did not much like Trixie and thought of her as an opportunist, Joe did not mind Trixie. He thought she was fun and gave her Dad much happiness in the two year-long relationship they enjoyed before his death. Joe did not mind Trixie having an equal share of his Dad's estate and that this would result in Joe and his siblings having to share the estate with Trixie. This is what Archibald told Joe's oldest brother he was doing with his will.

It turns out that Joe's information was correct. Archibald had divided his estate into five equal shares. His plan was give one share to each of his children, and one share to Trixie. This resulted in about $1,000,000 each. Of course the McMansion in which Archibald and Trixie resided would have to be sold, as it was worth about $3,000,000 of the $5,000,000 estate. 

A few weeks before Archibald died, Joe and Archibald got into an argument about politics. Joe, who had always held his tongue about his disagreement with Archibald's political views, let loose and told his Dad that he did not agree with Archibald's right-wing and conservative politics. When Joe told Archibald that he voted for the Green Party in the last federal election, Archibald was furious. Archibald, who had gotten angry at Joe many times for being such a "disappointment" to him, did not simmer down before he died. Essentially, Archibald never forgave Joe and they never made up after their argument. 

Unfortunately for Joe, and unbeknownst to him, about 10 days before Archibald died, Archibald changed his will. While in hospital, Archibald summoned a lawyer and changed his will. He decided to write Joe out of his will and divide the rest of his estate equally amongst Trixie and his other three children. Joe was devastated. Joe was devastated because he was on the outs with his Dad when Archibald died. Now he was devastated to know that he was not going to get the financial relief he had so counted on.

Joe has decided to seek the advice of an estate litigation lawyer. The advice Joe receives is governed by British Columbia's common law and the Wills, Estate, and Succession Act of British Columbia. Did the lawyer who drafted Archibald's will get appropriate will instructions? Did Archibald have a clear head when he changed his will? Trixie says yes. So do Joe's three older siblings. Joe, on the other hand, is not so sure. 

Complicating everything is that Joe and Trixie have a personal relationship. Joe has always appreciated that Trixie made Archibald so happy in his senior years. Although Joe's siblings don't care much about Trixie and certainly don't care much to share their inheritance with Joe, Joe is not interested in going to war against Trixie in any way. It is for these kinds of reasons that estate litigation is so much like family law. 

Written by Val Hemminger, lawyer