Vancouver Chinese Estate Litigation Lawyer

Vancouver Chinese Estate Litigation Lawyer

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Looking for a wills and estates lawyer who speaks Mandarin Chinese? We will help you manage your estate litigation in your native language so that you understand exactly what is going on at all times. We are the perfect law firm to help you navigate the challenges and demands of a multinational city like Vancouver.

If you need to challenge a will, you’ve come to the right place. We’ve helped Vancouver families settle estate disputes, or fight them out in court. We are well-versed in the kinds of issues that are typical for Chinese families, and we can help you bring your case to its best and fairest outcome.

What is Estate Litigation?

Estate litigation is the process of using the court system to dispute a will or estate plan. This usually requires a trial, as only a judge can alter a will. 

There are a wide variety of reasons why beneficiaries or interested parties might have to challenge a will. There are also a wide variety of other issues that arise when elderly family members become incapacitated, or die. 

Few of these cases are simple. It takes a tough, prepared litigant to ensure that these matters are brought to their most favorable outcome.

Types of Estate Litigation Disputes Typical for Chinese Families in Vancouver

There are multiple issues which can turn into estate litigation claims. 

Testamentary Incapacity and Undue Influence

According to the Wills, Estates, and Succession Act, the only people who are fit to make a will are those who are at least 16 years of age or older, who are mentally capable of doing so.

If the person who made the will is not found to be of sound mind, memory, or understanding, or if it is found that a caregiver or family member has pressured that family member to perform a legal act they would not otherwise wish to perform, then the courts can correct the will or revert to an earlier version of it. 

In these cases, elder abuse issues may come into play and so evidence must be carefully gathered and presented to the courts.

Dispensing Provision Under WESA

Section 58 of WESA states that a “record” is “data that (a) is recorded or stored electronically (b) can be read by a person, and (c) is capable of reproduction in visible form. (2) On application, the court may make an order under subsection (3) if the court determines that a record, document, or writing or marking on a will or marking represents (a) the testimony intentions of a deceased person, (b) the intention of a deceased person to revoke, alter, or revive a will or testamentary disposition of the deceased person or, (c) the intention of a deceased person to revoke, alter, or revive a testamentary disposition contained in a document other than a will.” 

A court may take these records into account even if the records are not in strict compliance with WESA. This means that small technical errors may not be used to undermine the willmaker’s intent. This can create significant complications when the intentions of the deceased are at issue during estate litigation.

Rectification of a Will

The court may order a will be rectified any time it determines that the will fails to carry out the will-maker’s intentions due to errors arising from accidental omissions or misunderstandings of the instructions. 

This means other evidence may be admitted to help the courts determine the intent of the willmaker.

Wills Variation Claims

British Columbia law attempts to strike a balance between a willmaker’s freedom to dispense with their property the way they see fit and the moral obligations of a willmaker towards their spouse and children.

This means that spouses and children, including adult children, may seek to challenge the will and ask for a change any time that a will does not make adequate provision for them.

Unjust Enrichment Claims

An unjust enrichment claim arises when a willmaker grew rich and received tangible benefits from the claimant only to cut the claimant out of the will. Usually the willmaker must have received a significant benefit, to the claimant’s significant detriment.

For example, if the claimant paid the willmaker’s way through school, went on to make a great deal of money, and then left the claimant behind, then they might well have a valid unjust enrichment claim.

Resulting Trusts Claims

A resulting trust claim arises when property is in one party’s name but really belongs to the other partner. It can arise when someone makes a gift during the testament’s lifetime. 

The person who receives the property holds the item “in trust” for the person who made the transfer. That means that person does not automatically get the property when the willmaker dies.

Disputes may arise as to whether the property was given as a gift or a trust. Disputes may also arise as to who has the true beneficial ownership of joint assets. 

Variation or Termination of Trusts Claims or the Removal of Personal Representatives

In cases where a trustee fails in their fiduciary duty to administer the terms of the trust a variation or termination of trusts claim may arise. This action serves to remedy the damages, to remove the trustee, or both.

Similar claims may be made when an executor is thought to be failing in the duties of their office, or there is reason to believe they are misusing their office.

Proceedings Related to the Presumption of Death

In order to presume that someone is dead without a body, and thus in order to begin administering their estate, the court must review the case. The claimant must prove: “(a) the person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named (b) the applicant has no reason to believe the person is living and (c) reasonable grounds exist for supposing that the person is dead.” 

Once the court makes the order that the person is presumed to be dead for all purposes their estate may be administered and the will may be put through the probate process.

Passing of Accounts

This form of estate litigation is used in cases where beneficiaries of a will do not agree with the estate accounting. The executor must attend a hearing where the court goes over the accounts. 

Committeeships

A committee is a person or persons who will take care of the financial and legal affairs of an individual who has become too disabled to care for themselves or to manage their affairs. It is an adult guardianship provision which is considered a matter of last resort.

Through proper estate planning an individual can name their adult guardian in the event that they become incapacitated. When this does not happen, the court may appoint a committeeship. Committeeship can become contested either by the alleged disabled person or by other interested parties who wish to step in as a guardian. 

Litigation for Disinherited Chinese Daughters

It is quite common for traditional Chinese fathers to leave their sons almost everything. Daughters are often left either with very paltry, insulting sums or with nothing at all. Yet British Columbia courts take a dim view of this practice, which is against our laws.

Some fathers give the money to friends rather than leave it to daughters, such as the case of a father who split a $900,000 estate between two friends without leaving them a cent. A British Columbia Justice granted the daughters 35% of the estate each, and gave the other 30% to the two friends. 

For over 100 years, British Columbia has held fast to the notion that will makers should make adequate provision for family members when they are gone, before they start giving money away to anyone else. The Wills, Estates, and Succession Act states that a judge may alter these wills when the law has not been followed.

This does not mean that a challenge is easy, or that you’ll be able to just waltz in and demand what’s yours. You’ll need a skilled estate litigation lawyer to prove that adequate provision has not been made and that the request for modification that you are requesting is reasonable. You’ll also have to prove, in some cases, that you were not responsible for an estrangement. 

Why Choose Us?

When you work with Chinese Lawyer Vancouver you work with an experienced lawyer with years of experience litigating the toughest, most complex estate cases. You also deal with a lawyer who will speak to you in the language that you’re most comfortable if Mandarin is your first language.

This means you’ll have all the information you need to make decisions about your case and will be working with a Chinese lawyer who understands the complex cultural factors that can sometimes impact estate cases in British Columbia. 

Chinese Lawyer Vancouver serves clients in Vancouver, Abbotsford, Langley, Surrey, and White Rock. Call to set up an appointment today.

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Please note: The information provided on this website is Not Legal Advice. The information may or may not be accurate. The information is for discussion purposes only. Reliance upon any information provided would not be grounds to advance a claim against Chinese Lawyer Vancouver for providing any advice. In order to get a formal legal opinion upon which you may rely about any specific fact scenario, you would have to first retain the services of a lawyer and request a formal legal opinion.