10 commonly asked questions about legal wills

1. What is required to draft a valid will?

To draft a valid will, the testator must have mental capacity, the will must be in writing, and the testator’s signature on the will must be witnessed by two or more people who also sign the will. There are some other requirements under the law you should talk to a lawyer about.

2. What is a Power of Attorney?

A Power of Attorney is a document executed by an individual during their lifetime that gives power to someone else to manage their financial and legal affairs. Powers of Attorney can take effect at different times, depending on how they are drafted (for example, when the individual becomes mentally incapable).

3. What happens to the estate if there is no will?

The Wills, Estates and Succession Act outlines who will receive the assets in the estate when there is no will. This is known as dying intestate. Who receives the assets will depend on which relatives of the deceased are alive.

4. I have been named as executor in a will, and the testator has died. What do I do now?

Contact us immediately for help filing the probate of a will.

5. How long do I have to challenge a will?

You have 180 days from the grant of probate to bring a wills variation claim against an estate. Other types of claims may have longer timelines, but it is best practice to start your claim as soon as possible to protect your rights.

6. Who can challenge the distribution of assets in a will?

The only individuals who can bring this type of claim are the children (natural born and adopted) or spouse (married or common law) of the deceased. Grandchildren, ex-spouses and stepchildren cannot challenge the distribution of assets.

7. Which assets form part of an estate, and are distributed by a will?

The assets that form part of the estate will depend on the individual’s estate planning during their lifetime. Any assets that the individual owned themselves such as their home, vehicles and bank accounts often form part of the estate.

If these assets are jointly owned with another individual, they may pass outside the estate. Other items like RRSPs or insurance policies with a designated beneficiary will also fall outside of the estate.

8. Do assets transferred (or given) to others during the deceased’s lifetime form part of the estate?

No. Any assets that are transferred or gifted to someone else while the deceased is alive will not form part of their estate unless there were conditions attached to those transfers.

9. My loved one executed a will under pressure, and it does not represent their wishes. What can I do?

If the deceased executed their will due to undue influence, you can challenge the validity of the will in court.

10. Can a B.C. lawyer help me with a will that is not in this province?

It depends on where the person who died resided and if they had a connection to British Columbia. If they resided in B.C., or they had property in B.C., then it may be prudent to speak with a lawyer in B.C., even if the will was prepared elsewhere.

However, if there is no connection to B.C. then we do not take on cases that relate to estates in other jurisdictions as the legislation for wills and estates is provincial.