Questions

Wills and Estate FAQs

My mother passed away and in her will left everything to someone other than me, what can I do?

If your father is still living and your mother left everything to him there may not be many options open to you. If your mother survived your father and her Will leaves nothing for you (for example giving everything to her new husband) then you are entitled to seek the intervention of the Supreme Court of British Columbia to have your mother’s Will changed so that it makes what the Court considers to be a just and equitable provision for you. There are strict time limits on doing this so you need to consult a lawyer promptly.

My husband or spouse passed away and left everything to his children in his will, what can I do?

If your spouse or husband does not make adequate provision for you in his Will you are entitled to seek to vary the Will pursuant to the Wills Estates and Succession Act. There are strict time limits on doing this so you need to consult a lawyer promptly.

My Aunt took my grandmother to get a new will created just before she died. The new will leaves me nothing. I believe I would have received a lot in the old will. What can I do?

As a grandchild, you do not have standing to try and vary the Will under the Wills Estates and Succession Act but you can try and have the entire Will set aside, especially if the new will was done at a time when your grandmother was not competent or if she was vulnerable to undue influence from the new beneficiaries. A lawyer can help to file the proper documents to prevent the questionable Will from being probated. In this case you will need to retain experts and collect all of the appropriate medical records to determine if your grandmother was competent at the time the new will was created. Consult an estate lawyer to ensure the best possible outcome.

After my father passed away my sister was POA for my mother and she is also the executor of my mother’s estate. I suspect that my sister took money from my mother while she was living but now refuses to deal with this issue and the estate is worth way less than what I had expected. What can I do?

The POA Act requires that the person who is appointed be able to quantify the assets at the time they took over and that they be able to account for their actions in detail. The starting point is a letter to the sister in their capacity of former POA demanding that they account pursuant to the POA Act. If you are not satisfied with their response or there is none then the next step may be to seek to bring legal proceedings against the sister within the estate by way of s. 151 of the Wills estates and Succession Act or to remove the executor for conflict of interest. It is important that you act quickly and it is advisable that you seek legal advice with respect to these matters because there are strict time limits on doing this.

Nanaimo wills and estate lawyer Timothy J. Huntsman** would be pleased to meet with you to discuss your estate law issue.

Construction Law

If I am a builder or contractor and I am not being paid for the work and materials I have provided what can I do?

Your first step is always to file a builder’s lien, because the Builder’s Lien Act imposes time limits on when a lien can be filed. Huntsman Law* strives to do this the very same day you reach out to us.

If I am an owner and I am unhappy with how construction is proceeding what can I do?

Your first step is to engage the builder to correct any problems that may persist. Do this in writing (keeping a copy) with specific details of the problems. If the issue isn’t resolved to your satisfaction, you should consult with a lawyer before firing the builder. If there is a verbal or written agreement, you may be liable for damages for breaching the agreement. You are likely able to avail yourself of a remedy from the builders new home warranty insurance, but only for negligent work, rather than to claim damages for work not completed.

How do I remove a builder’s lien that is on title?

Typically, the first step is to examine the lien and consider the facts of the case. The lien may simply have been filed out of time. Next, you may file a 21 day notice to commence an action in the approved form. This will force the lienholder to get moving on proving their claim of lien. When the lienholder has commenced their action you can then apply to the Court to have the lien removed, either by the posting of security, or seeking its dismissal if it is without merit.

I have filed a lien and the owner has falsely claimed that my work is defective. What can I do?

This is a typical defense used by an owner to avoid paying a bill that may be due and owing.  It can be very effective, especially if the claim of lien is not substantial enough to warrant retaining a lawyer and going to court. If pressed, it will become necessary for an expert engineer or tradesperson to examine the work performed and provide an opinion on any deficiencies that may exist and the cost of any repairs. It may be that there are none. Once you have your evidence in place you can proceed to enforcing the builder’s lien.

I have entered into a contract to buy or sell land and I want to get out of it. What can I do?

Firstly, determine whether all subjects have cleared and all conditions met. If handled correctly, this may provide a way out. If subjects have cleared, you have a binding contract. The specific circumstances of each case would need to be examined to determine your options. The law provides criteria whereby you can enforce a contract, get out of a contract, or perhaps obtain damages for breach of a term of a contract.

I own a piece of land that my child is living in and his spouse is saying that they are entitled to a share. What can I do?

The first thing to do is to assess what contributions either your child or their spouse have made to the property in question. Then you need to decide if this is a question of alleged entitlement that will only get worse over time. You need to determine whether or not your child supports the claim by the spouse. The answers to these questions may enable you to decide whether to end your child’s tenancy immediately or not. There is no easy answer because, although the best route is to usually not let the passage of time further complicate matters, taking steps to resolve the issue may result in litigation.

Nanaimo construction lawyer Timothy J. Huntsman** would be pleased to meet with you to discuss your property dispute or construction issue.

We represent wrongful injured parties only, never ICBC. Talk to us before making a settlement.

Trusts

I am disabled and I will be receiving a large sum of money, however, I do not want to be disentitled from disability benefits. What can I do?

Firstly, if you have already received the money which exceeds the limits set by regulation, you are already technically disentitled from benefits and you should seek legal counsel immediately. If you are expecting this money from an estate, motor vehicle accident settlement, or a gift, we can assist you with setting up a trust or a Registered Disability Savings Plan (“RDSP”).

Did you know that you are entitled to own your residence and remain entitled to disability benefits? Did you know that the Federal Government will make contributions to your RDSP in many circumstances, which could be of a value in excess of $75,000.00?

I am the beneficiary of a trust and only the trustee has been receiving a benefit. What can I do?

The law of trusts is fairly complex but nonetheless has longstanding guiding principles that govern the conduct of trustees. Typically, the first thing to do is request an accounting from the trustee. This will often determine what assets are in the trust and how it has been administered. It is typically the response to this demand that will enable the beneficiary to determine whether or not they have cause to remove the trustee for breach of trust. In more complex scenarios it may be necessary to commence an action to obtain relevant disclosure. We recommend seeking legal counsel to discuss your specific situation.

I am the beneficiary of a trust and I am getting a Divorce. Is the trust a family asset?

The Family Law Act has codified the answer to this question which is helpful in determining an answer to your specific situation. In many cases it would be a family asset especially if it was created during the relationship, was non discretionary in favour of you, or was treated like a family asset. In other cases where the trust was created by a third party in your favour prior to the commencement of your relationship it should not be treated like a family asset, even if you are receiving payments. Despite the foregoing, it is possible for your spouse to make the argument that because you are the beneficiary of a trust, and hence wealthier, there should be a redistribution of other assets to your spouse. To counter this argument is complex, but the nature of the trust and its discretionary nature (if that is the case) might be a complete and effective response.

We can help with the preparation of trust deeds, as both an estate planning tool or to assist with the affairs of a disabled person.