Welcome to Nixon Wenger LLP
Wills and Estates
A full-service law firm, Nixon Wenger LLP is committed to our clients.
We pride ourselves on providing excellent legal advice.
Our experienced and knowledgeable lawyers provide a full range of estate services. Our team can help you with planning, administration, litigation and committeeship.
When an adult can no longer independently manage his or her legal, financial, or business affairs and/or health and care matters because of mental incapacity due to age, disease or otherwise, it is common for a trusted family member or close friend to step in and provide assistance.
At Nixon Wenger LLP, our lawyers are experienced in handling Committeeship applications and elder law generally. If there is someone in your life who you feel may be in need of a formal guardian or Private Committee, and you wish to talk about the court application process, or to hear about other options that might be appropriate for you and your family, then contact us – we can help.
We are also pleased to advise clients on estate administration. The task of an executor or administrator can be time consuming and emotionally taxing. We provide a range of services, from obtaining a grant of probate or letters of administration, to complete representation of the estate on behalf of the executor or administrator. We also assist in gathering information on the assets and liability of the estate, prepare accounts, distribute assets to beneficiaries as well as work closely with tax professionals to ensure all necessary Canada Revenue Agency filings are made.
The practice of our Estate litigation lawyers spans the full spectrum of Estate litigation: disputes in the administration of a trust or Estate, the interpretation of Wills, Wills Variation Act cases, resulting trust and constructive trust cases, applications to vary trusts and committeeships. We also advise Executors and Trustees on their duties and responsibilities and on their remuneration and passing of accounts. Our Estate litigation lawyers are experienced in alternative methods of dispute resolution, particularly the use of mediation to resolve claims against an Estate.
Will and Estate Planning
Estate planning involves planning for the orderly transmission of assets on death and planning for incapacity. We offer clients a full range of services covering all aspects of estate planning, from simple estate plans (e.g. wills, trusts, powers of attorney and representation agreements) to complex corporate organizations (e.g. family trusts, estate freezes) and business succession planning (shareholder and buy-sell agreements). As well, we can advise clients who wish to plan for the protection of a disabled child or another relative.
What is a Will?
A Will is a document in which you explain what you want to happen with the assets that you own solely in your own name at the time of your passing. These assets often consist of real estate, money, investments and personal or household belongings.
What items does a Will not address?
A Will generally does not address assets that you own jointly with another person such as a house owned in joint tenancy. A Will may also not apply to assets such as life insurance or RRSPs, where you have already designated a beneficiary.
Do I only need a Will?
Although you may only need a Will, at the time of preparing your Will, we will also discuss with you whether a Power of Attorney and a Health Care Representation Agreement are appropriate in your circumstances. A Power of Attorney permits another person to deal with your assets during your lifetime and a Health Care Representation Agreement permits another person to make medical and health decisions on your behalf should you not be able to do so.
If I die without a Will, will the government receive my Estate?
Typically not. In British Columbia, the Estate Administration Act dictates how your Estate will be distributed in the event that you do not have a Will. For example, if you die without a Will and leave a spouse and children, your spouse will receive the first $65,000 of your Estate and all amounts in excess of the $65,000 will be distributed equally among your children and your spouse. As this can be a result that is not what you intend, a Will is a valuable document to ensure that your wishes are followed.
Can my Executor also be a beneficiary of my Estate?
It is common for your Executor to also be a beneficiary of your Estate. Your Executor has a duty to act in accordance with your wishes, but that does not prohibit your Executor from also being a beneficiary of your Estate.
I am not satisfied with the current terms of my Will and I no longer wish for the person named in my Power of Attorney to be my Attorney. What can I do?
Your Will is a document that can either be amended (usually by way of a codicil) or completely revised at any time. Likewise, you are able to revoke a Power of Attorney and, if it is appropriate, grant a new Power of Attorney. We would be pleased to meet with you to discuss your options.
Why should I have a lawyer draft my Will when there are Will kits available?
Although a Will may seem simple, it is a complex legal document. In order to make an effective and valid Will you must have a thorough understanding of the legislation relating to property ownership as well as applicable Wills legislation. Entrusting the drafting of your Will to a lawyer will help to ensure that your Estate will be distributed according to your wishes.
I am the Executor of an Estate. Am I allowed to engage advisors to assist me with my duties?
Yes. It is common for an Executor to engage the services of a lawyer, an accountant and, in some instances, a financial planner to assist with obtaining a grant of probate or letters of administration as well as administering the Estate.
My father passed away some time ago and my mother has recently passed away without making a Will. My siblings and I want to attend to the distribution of her Estate. Her Estate is not large, a small house and modest savings. Can you help?
In order to administer the estate of a person who has died without making a Will, it is often necessary to obtain Letters of Administration for the estate. For example, before a house can be transferred into the name of another person (such as yourself or one of your siblings) it will be necessary to have an appropriate person apply for Letters of Administration. Letters of Administration are similar to receiving a Grant of Probate, but are only sought when there is no Will. The distribution of the estate is then governed by the legislation.
What is a Committeeship and under what circumstances would it be required?
A Committeeship is granted by the court and permits one person to make decisions on behalf of a person who is unable to make their own decisions. A Committeeship may be required in an instance where a person has not granted a Power of Attorney or a Health Care Representation Agreement.
My father has died and I think that my father’s will was made under the influence of our neighbor. Can I do anything?
You may have a claim to set aside the will. An application to the court is necessary to test its validity. Legal advice is very important before embarking on this course of action.
I cared for my elderly father during his last years. He didn’t have enough money to pay me but always promised he would “leave me something extra” in his Will. His will hasn’t been changed in 20 years. Is there anything that can be done for me now?
In this type of situation there may be a constructive trust in your favour which may entitle you to claim a greater share of your father’s estate. You may also apply for a greater share of his estate by applying to vary the will. We recommend that you speak with us as these situations are fact-specific.
My husband passed away and left his entire Estate to our children, including our house which was registered in his name only. I fear I won’t have enough money to see me through my retirement. Can I do anything or am I bound by the terms of his Will?
Under the British Columbia Wills Variation Act you are permitted to make an application to Court to have your husband’s Will varied so that you are adequately provided for. It is important to recognize that from the date of the grant of probate there is a limited period of time in which you are permitted to make such a claim. In this type of situation we recommend that you seek legal advice as soon as possible.
I want to dispute an Estate as I believe I am entitled to a bigger share. However, I do not have a great deal of money and I understand that litigation can be expensive. How are your fees calculated and paid?
In some instances our firm is prepared to act for you on a contingency basis. This means that we are paid a percentage of any amount that is paid to you and not on an hourly basis. There are British Columbia Law Society Rules with respect to representing you on a contingency basis and we would be pleased to discuss these with you. In other instances, we bill you based on the amount of time we spend on your matter and not the monetary result.