Vancouver Wills Variation Lawyers help Vancouver clients who have not received their fair share from the deceased’s Will maker recover a fair and just award. MacLean Law, founded by Lorne N. MacLean, QC, is a multiple award winner of best family law firm in Vancouver from prestigious Top Choice Awards. Our experienced Vancouver Wills Variation Lawyers take a compassionate approach to dealing with our clients and a firm approach to ensuring you get your fair share. We know it is hard enough to lose a loved one but being deprived of your fair share of the estate just compounds the hurt you are suffering.
Division 6 of WESA sets out the rules for varying Unfair Wills :
60 Despite any law or enactment to the contrary, 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.
Call us at 1-877-602-9900 across BC to meet with us in Vancouver, Surrey, Richmond, Kelowna or Fort St John.
Vancouver wills variation lawyers know estate litigation costs money. MacLean Estate Litigation Vancouver wills variation lawyers also explain to Vancouver estate litigation clients that costs can be awarded by courts to the successful party. Our MacLean Estate Litigation lawyers provide legal advice to our clients on recovering their fair estate share and on how special rules of costs apply to unfair will disputes in Vancouver.
Vancouver Wills Variation Lawyers
The costs awards for estate cases are intended to partially compensate the successful party for the legal expenses they were forced to pay because of the other side’s opposition to the Vancouver Wills variation claim. Costs guide litigants in taking a reasonable approach to litigation as well. Cases may settle more promptly when parties make offers to settle that have cost award implications.
Vancouver Wills Variation Lawyers Summarize Recent Unfair Wills Case
In the recent BC Supreme Court Vancouver wills variation case of Ciarniello v. James Mr. Justice Sigurdson restated the law of costs in estate cases for Vancouver wills variation lawyers and their clients:
[2] The plaintiff obtained a variation of the will. Her application was opposed by three defendants who I described as the First Marriage Children. The plaintiff says that she was successful and that costs should be awarded to her in accordance with the usual rule that costs go to the successful party unless the court otherwise orders…
[4] Clearly the plaintiff was the successful party. However, in some circumstances costs in estate litigation are handled differently and this was generally described by Dardi J. in Massam Estate (Re), [2015] B.C.J. No. 1607, 2015 BCSC 1306, where she said at para. 49:
The costs analysis in certain types of estate litigation is informed by specific principles unique to estate litigation: Mawdsley v. Meshen, 2011 BCSC 923. For example, if the litigation was brought about or sprung from the will-maker’s own conduct — such as ambiguous wording in the will requiring an application to construe the will — the general judicial approach has been that all parties should be awarded their costs out of the estate: Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (S.C.); Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76 (C.A.). Otherwise, the usual rule is that costs follow the event, so that the successful litigant is entitled to recover costs from the unsuccessful opposing party. The court, however, retains the discretion to order otherwise if the circumstances warrant it. Any discretionary exceptions to the usual costs rules must be made judicially: Bailey v. Victory (1995), 4 B.C.L.R. (3d) 389 (C.A.) at 393.
[5] The leading case on the usual approach to costs in estate litigation is the Court of Appeal’s decision in Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76. Hinds J.A. referred to the decision of Master Horn in Lee v. Lee Estate (1993), 50 E.T.R. 297 at pp. 301-302 for the proposition that “where the validity of a will or the capacity of the testator to make a will or the meaning of a will is in issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate”. However, quoting further from Master Horn he referred to litigation such as the case at bar where the issue was not the validity of the will or the testator’s capacity but the provisions directed to the support and maintenance of dependants and said in part:
But the case is different where the litigation does not relate to the validity of the will or the capacity of the testator or the construction of the will. Actions brought under dependants’ relief legislation presume the validity of the will and the capacity of the testator and that his intentions are clear. There are not doubts to be settled. The remedies provided by such legislation are directed to the maintenance and support of the dependants of the testator and are based on public policy. The legislation does not invalidate the will, it merely permits the court to vary the provisions made by the testator. So an unsuccessful action under such legislation cannot be said to have been caused by a testator, or to have been necessary to enable the estate to be distributed. The action does not benefit the estate.
[6] Hinds J.A. continued at para. 45:
Here there was no question of the validity of the will, the testamentary capacity of the Testator, or of the meaning of the will. The Testator was not at fault in some way, thereby contributing to the appellant making an unsuccessful claim against his estate. In my view the general rule must prevail; costs should follow the event. …
[7] There is no reason, exercising my discretion judicially, to make an order different from that sought by the plaintiff’s counsel. The plaintiff was successful. I was not shown any offers to settle by either party that showed the result was better than a result they were prepared to settle for.
[8] The plaintiff shall receive her costs on Scale B from the First Marriage Children and the Second Marriage Children will bear their own costs.
Vancouver Wills Variation Lawyers at MacLean Estate Litigation can help in confusing times but only if you contact us immediately at 1-877-602-9900. Strict deadlines to commence your claim apply so don’t delay or your Vancouver will variation claim will be barred forever.
