Frequently Asked Questions
Wills, Estates and Adult Guardianship
- Can I challenge someone’s will?
There are various ways to challenge someone’s will. The most common is that the person who made the will, (the Testator) did not have the mental capacity to make the Will or that the Testator was unduly influenced to make the Will in question.
- What if the person who made the Will was of sound mind and no one unduly influenced them?
If your are the spouse or child of a Testator and they have not adequately provided for you under their will, then under the Wills Variation Act, R.S.B.C. 1996 c.490, you can ask a judge of the Supreme Court of British Columbia to vary the Will to provide you with more. This is a discretionary remedy so whether or not you will be successful will depend on the facts of the case.
- The Executor has now finished with the Estate and wants to distribute the Will, but he/she is asking to be paid for his work. How do I know what he is asking for is fair?
What an Executor is entitled to receive, as payment for his work will depend on a number of things. The first is whether or not the Testator made a contract with the Executor to pay the Executor a certain amount or percentage. If there is no contract the Will may state what the Executor can receive. If there is no contract, or clause in the Will, then under the Trustee Act R.S.B.C. 1996, c. 464, an executor (who is also a Trustee) can ask for up to 5% of the gross value of the Estate as compensation.
- Does the Executor always receive 5%?
The Executor does not always receive the highest amount available. It will depend on the size of the Estate, the amount of work that the Executor had to do, the experience of the Executor, how complex the estate is.
- Can I challenge the amount of money that the Executor is seeking?
You can challenge the amount the Executor is asking for if you are a residual beneficiary, (someone who receives a portion of the Estate rather then a specific gift). If you wish to challenge an Executor’s remuneration you can do it on an informal basis, and if all agree to an amount then the matter can be settled. If you cannot come to an agreement then the Registrar of the Court will have to decide.
- What authority does a Power of Attorney have?
A Power of Attorney may have very broad powers or very narrow powers. It will depend on the wording of the Power of Attorney. A Power of Attorney only allows the Attorney to deal with financial matters and not health care decisions.
- When does someone need a Committee?
A person needs a Committee when he or she becomes mentally incapable of managing their finances or making personal care decisions. If the person does not have a power of attorney and can no longer make financial decisions a Committee will need to be appointed by the Court. If a person cannot make personal care decisions a Committee will need to be appointed.
- What is a Committee?
A Committee is someone appointed by the Court to look after the financial affairs of the person who is incapable.
- What is the process to be appointed?
An application to the Supreme Court of British Columbia is required to have a Committee appointed. There are certain requirements and documents needed to make the application.
- Who will be appointed a Committee?
It will depend on the relationship the person has with the adult who is now incapable. It may be a family member, friend, trust company or the Public Guardian and Trustee of the Province of British Columbia.
- What is a Living Will?
In British Columbia, we have Representation Agreements. These agreements allow a person to choose who will make health care and financial decisions in the event the person becomes incapable of making such decisions. A person can give very broad or very limited powers to his/her representative.
We will be pleased to answer any of your questions in respect of these or any other matters.
