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Avoid These Excluded Property Mistakes

Vancouver Estate Litigation Settlement lawyers use negotiation, mediation, arbitration, and courtroom litigation to get you a fair Vancouver disputed Will settlement. Knowing the rules of how a spousal claim is made under either family law or by way of a WESA estate litigation claim is critical and the rules are confusing. Don’t delay in getting help with your Vancouver estate litigation settlement.

Get immediate advice if your marriage or marriage-like relationship is unstable particularly if you or your spouse have serious health challenges. Failing to do so may prevent you from obtaining a fair Vancouver Estate Litigation Settlement. Whether spouses are separated and whether there are any agreements or orders for spousal support makes a huge difference.

Vancouver estate litigation settlement strategies help families who have suffered the loss of a loved one settle unfortunate disputes over estate property.

Because spousal claims against estates in unfair Will variation and Vancouver Estate Litigation Settlement cases are assessed against what a spouse would receive if the parties notionally separated, hiring one of our top-rated family law and estate lawyers just makes solid sense if you are seeking to maximize your fair share.

A skilled Vancouver Estate Litigation Settlement lawyer is needed to sort through how a family law claim and an estate claim are different and when one or the other is the proper claim to make.

Our top-rated* Unfair Wills Settlement lawyers help settle cases to avoid the delay, stress, and cost of a WESA Will variation contest. Our Unfair Wills Settlement lawyers are adept at using all methods for obtaining a just result for you.

A recent case involving a settlement of a spousal claim against an estate points out what a court will focus on in cases where a settlement is reached and someone wants to change the deal.

The case points out that hiring top Unfair Wills Settlement lawyers early on and ensuring a fair Vancouver Estate Litigation Settlement is negotiated and then properly achieved is the proper approach. Making a bad deal in haste, and then trying to get out of it is inadvisable and to be avoided at all costs. Hiring a top-rated family law lawyer who understands the rules for making claims under the Family Law Act or WESA particularly if you are in an unstable marriage and one spouse is ill- is critical.

The recent British Columbia Court of Appeal case of Gibbons v Livingston, 2018 BCCA 443 involved a common-law spouse who received insurance proceeds, RRSP’s and a monthly survivor pension worth over a half million from her spouse but she was not named in the Will. She commenced a Will variation application and reach a mediated settlement with the estate that gave her about $50,000 more on the sale of the deceased’s home. The facts of the case are as follows:

[7]        The parties reached a settlement at the mediation and signed minutes of settlement, which noted that they were intended to be a resolution of all issues between the parties arising from the death of Calvin Livingston.  The settlement provided that the plaintiff would keep a boat, and would vacate the house on Dalton Road by March 31, 2018.  The plaintiff was to pay $2,500 to the defendant forthwith for mortgage payments between the time of mediation and the date of her leaving the property, while the defendant was to pay the plaintiff $50,000 upon selling the Dalton Road property.

[8]        The plaintiff did not, however, vacate the house by March 31, 2018, and failed to pay the sum of $2,500 to the defendant forthwith as required.  She retained new counsel.  On August 15, 2017, she filed an amended notice of civil claim in this action in which she pleaded that the settlement agreement was unjust, unfair and inequitable, and in which she alleged a family property claim under the Family Law Act, S.B.C. 2011, c. 25. …

The Court of Appeal also noted in paragraph 3 of its decision that: “the [common-law wife of the deceased] did not dispute that she entered into the settlement agreement [with the step-son] following the mediation and that she did so with the advice of her counsel.” 

However, there were two issues raised by the common-law wife at the Court of Appeal. 

The first issue raised by the surviving common-law wife was that the settlement agreement was negotiated and obtained by her step‑son when “…[the elderly woman] was in an extremely fragile state, emotionally distraught, and not thinking clearly…” In other words, it was a form of unconscionable Elder Abuse, and the agreement was obtained under duress.

The second issue was a complicated legal argument that had to do with the legal definition of “separation” and the rights of a “spouse” under both the Family Law Act (FLA) and the Wills, Estates and Succession Act, (WESA).  

Specifically, the family law wills and estate lawyers of the elderly common-law wife argued that the settlement agreement that was reached at the mediation dealt only with her rights to change her late husband’s will under the Wills, Estates and Succession Act, (WESA).  Accordingly, the family law wills and estate lawyers for the elderly common-law wife argued that she still had a valid claim for both spousal support and a division of property, (from the estate of her common-law husband), under the Family Law Act (FLA).

Vancouver Estate Litigation Settlement Call 1 877 602 9900

In this case, the BC Court of Appeal ultimately rejected both arguments.

With regard to the issue of “Elder Abuse,” unconscionability, and duress the Court found that:

“The appropriate test for setting aside the settlement agreement as unconscionable is the test applied to separation agreements. Although Ms. Gibbons was in a vulnerable position when she entered the agreement, it was not unconscionable because she was represented by counsel, there was no evidence of anyone taking advantage of her, and the settlement is not a significant deviation from her statutory entitlement.” (per Willcock and Fenlon JJ.A)

With regard to whether or not a claim still existed under the Family Law Act (FLA), separate from the Wills, Estates and Succession Act, (WESA), the Court stated that: 

[17]         Where a spouse dies after separation but before settlement of their rights and obligations under the FLA, the surviving spouse can commence an action against the estate of the deceased [under the FLA]The provision in the FLA permitting this became necessary when the Wills Variation Act, R.S.B.C. 1996, c. 490 [WVA], was repealedAlthough both the WVA and the WESA (which replaced it) provide a mechanism for a spouse to apply to vary the distribution of the estate provided for in the deceased spouse’s will, if dissatisfied with the provisions of the will (in s. 2 and s. 60, respectively), the definition of “spouse” under s. 1 of the WVA does not preclude separated spouses, whereas the definition of “spouse” under s. 2 of the WESA does. Under the WESA, then, separated spouses have no variation rights because they no longer qualify as a “spouse”.

[18]         On the other hand, where spouses have not separated [before the death of one of the spouses]the division of family property upon death is addressed in the WESA.

What this case tells us is that allegations of an unfair particularly when a husband or wife attempts to dispute the will of their spouse, with or without the involvement of their children or step-child.  For this reason, it is very important not to rush into any Vancouver Estate Litigation Settlement settlement that might affect your rights to contest a will and/or that might affect your rights to spousal support and/or a division of property after the death of a spouse.  

Fortunately, the experienced and professional wills, estate, trust, and family law lawyers at MacLean Law are here to help. 

If you or your loved ones are thinking about contesting a will, or if you think that you are entitled to receive support from your deceased husband or wife’s estate, very precise requirements must be met so please contact us now, before it is too late.  

We will work with you to help you get what you are entitled to and what you deserve from your spouse’s estate or upon separation under the Divorce and Family Law Act if you separated before the death of one of the spouses.

Get help from experienced Vancouver Estate Litigation Settlement lawyers. Call 1 877 602 9900

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