Squatters Rights in British Columbia – Estate Litigation

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Squatters Rights in British Columbia

You find out that you are the Executor of the Estate of your Uncle John who lived in British Columbia.  Uncle John owned a vacant parcel of land in the interior.  Unfortunately, when you get to the property to inspect it, you discover that squatters are living on the property. The squatters say that they have been on the property since 1995. You want to know the Estate’s rights to the land and whether the squatters have any rights.

The law relating to squatter’s rights is titled “adverse possession”.  Squatter’s rights allows an individual to gain possession of land that is not actually owned by that individual.

In some provinces, squatters can acquire rights if they can show that they continuously used the land for a prescribed period (as may be set out in provincial legislation), that the squatters used the land in a way that is contrary to the true land owners intended use of the land, and that the true land owner was dispossessed of the land.

The good news for the Estate is that in British Columbia it is no longer possible to acquire land through adverse possession by virtue of section 28 of the British Columbia Limitations Act (unless the right to that land by adverse possession existed before July 1, 1975).

In other words unless the squatters could establish that they were in adverse possession before July 1, 1975, they have no rights to the Estate property.

Here, the squatters were in possession only since 1995 so they have no rights to the property.

If you need legal advice on this subject or any other law related inquiry please contact us.

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Challenging a Will? Estate Litigation

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If you are a beneficiary or an executor under a Will, you may have to deal with a Will that is being challenged or, if you are a beneficiary or a potential beneficiary, you may be in a position to challenge a Will. A beneficiary or a potential beneficiary may challenge a Will where he or she claims that the Will is invalid. There are a number of factors that must be met in order for a Will to be valid, the absence of which will leave a Will vulnerable to a challenge.

Legal Requirements

A Will may be invalid if the will-maker did not satisfy the formal legal requirements. For example, in order for a Will to be valid, generally, two people must witness the will-maker’s signature. However, in certain cases, even if a Will does not meet the formal requirements, a court may determine that the Will is still valid.

Mental Capacity

A person may also challenge a Will on the grounds that it is invalid if, when the will-maker made the Will, he or she did not have the required mental capacity to make a Will. In order to have the required mental capacity, the will-maker must understand what he or she is doing and must not be suffering from any disorder or illness that affects mental capacity. For example, a person will not have the required mental capacity to make a Will if he or she is suffering from dementia when he or she makes the Will.

Knowledge and Approval of the Will’s Contents

Although a person may have the mental capacity to make a Will, the Will may still fail to reflect the will-maker’s wishes. A will-maker must understand what the Will is intending to do such that it reflects his or her true intentions. Additionally, a Will may not meet the requirement that the will-maker knows and approves of the contents of a Will if someone else improperly influenced the will-maker. For example, a person who threatens to stop taking care of a person unless the will-maker leaves him or her something in the Will has improperly influenced the will-maker.

What Happens if the Will is Successfully Challenged?

If a court finds a Will to be invalid, the court may look to a previous Will to determine how the deceased’s estate will be distributed. If there is no previous Will that is valid, the estate will be distributed according to the law of intestacy. Intestacy means that the deceased’s family members will inherit from the deceased based on the order set out in the British Columbia Wills, Estates and Succession Act.

If you need legal advice on this subject or any other law related inquiry please contact us.

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Trusts & Estate Law – Undue Influence in the Context of Wills

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As people get older, they can start to lose their ability to think clearly. This can have wide ranging effects, including an inability to properly understand or communicate how they want to dispose of their property when they die. Unfortunately, there are those that recognize this weakness and attempt to take advantage of it. A particularly insidious example of this when someone attempts to improperly influence an elderly person’s final wishes regarding the disposition of their estate.

For example, consider a relatively common situation where a parent requires assistance with living on their own or their personal care. You might notice that they tend to forget things and are having trouble running their finances. To try and keep them comfortable, you hire a caregiver. Over the years, your parent becomes quite dependent on the caregiver. The caregiver begins to help with almost every aspect of your parent’s day-to-day living, including becoming involved in their financial matters. Ultimately, the caregiver ends up living with your parent for a few months before their death. After their death, you discover that unbeknownst to you, your parent has transferred all of their assets into the name of the caregiver. You believe that your parent did not intend to give all their property away to the caregiver.

Did the caregiver improperly influence your parent to give their property away?

When there are suspicious circumstances as to whether someone has overwhelmed the will of a will-maker (called a “Testator”) to give property away, courts can consider whether someone unduly influenced the Testator. If the court finds that the Testator was unduly influenced, the court has the power to reverse the property transfer.

When determining whether the free will of a Testator was dominated by another individual, the court will review all the circumstances surrounding the relationship between the two parties. To do this, the court will analyze whether a person was in the position to dominate the will of the deceased. The court would have to undertake a careful analysis of the situation, attempting to fully appreciate the relationship between the caregiver and the Testator. The court will review medical evidence from the Testator’s doctors, testimony from the family, and also consider whether the deceased received legal counsel in advance of disposing of their property.

If you have concerns regarding the disposition of your parent’s estate it is vital to seek legal counsel without delay.

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When can a Court vary a Will? – Estate Litigation

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Under the British Columbia Wills and Estate Succession Act, a court has the power to vary a Will from the original intentions of the testator. In Hagan-Bourgeault v. Martens Estate (2016 BCSC 1096), a daughter applied to have her mother’s Will varied. Tataryn v Tataryn Estate, [1994] 2 SCR 807, 93 BCLR (2d) 145 (SCC) outlines the factors that a court must consider when varying a testator’s Will. Ultimately, the Court may vary the Will as long as it is ‘adequate, just and equitable’ in light of the circumstances.

The contest in Hagen-Bourgeault was over a modest estate. The residue of the estate consisted of a structured settlement from ICBC, which paid a monthly income of about $2,200.00 per month. The mother left no immediate direct provision for her daughter in her Will, and did not disclose any reason for her failure to do so. Instead, the mother left the residue of her estate to her husband. The husband’s position was that it was the deceased’s intention that he should have the discretion to make payments to the daughter based on her needs. The Will also stated that if the husband predeceased the daughter, that the “residue of the estate was to be held in trust for the plaintiff” and to be paid at predetermined later dates.

In determining the appropriate division of the estate in Hagan-Bourgeault, the Court analyzed both the financial need of the daughter, and the moral claim that she had to the funds. The Court also reviewed the position of the husband. He only had a short relationship with the deceased and he was financially independent.

The Court held that it was just and equitable to vary the mother’s Will and give the residue to the daughter.

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