Understanding Estate Litigation in BC: How Proper Preparation Can Prevent Legal Battles

Estate disputes can be complex and emotionally charged, from will variation claims to conflicts over executors and powers of attorney. Understanding your rights and the legal options available is crucial when navigating these challenges. 

In our latest podcast, FH&P Lawyers’ estate litigation expert Kevin Cheung, alongside Clay Williams and Tanvir Gill, explores common estate disputes, the importance of proper planning, and how our legal team can help resolve conflicts efficiently—whether you're contesting a will or protecting your loved one’s wishes.

Clay: Welcome to FH&P Lawyers Law Talk. I'm Clay Williams, and with me is my partner at FH&P, and my co-host, Tanvir.

Tanvir: Hi, Clay.

Clay: Hi, Tanvir. How are you doing today?

Tanvir: Great, thank you.

Clay: Today, we’ve got a guest, Kevin Cheung. Kevin is an associate here at FH&P and a member of our estate practice group. I think that’s what it’s called—is that right?

Kevin: Yeah, that’s what I call it.

Clay: That’s what you call it. So, Kevin, tell us a little bit about yourself. How long have you been a lawyer, and how long have you been around?

Kevin: I’m an associate at FH&P Lawyers, and I’ve been practicing law in BC for about four and a half years now. I started out in Ontario, where I practiced for about three or four years. I focus on estate litigation and also handle some construction litigation.

Clay: While I was prepping for this, I looked at your bio and saw that not only are you a member of the British Columbia Bar, but you’re also a member of the New York Bar. That’s pretty cool—it’s a long way across the continent to come to Kelowna. Why are you a member of the New York Bar? And isn’t that hard?

Kevin: It was insanely hard. The bar exam was incredibly difficult. But I earned degrees in both the U.S. and Canada, so I decided to write the New York Bar as part of that experience. After that, I also completed the Ontario Bar.

Clay: You’re just collecting bar examinations! I’ve heard the failure rate for the New York Bar is really high. It’s different from here, isn’t it?

Kevin: I think it’s over 50%, at least for first-time test takers.

Clay: Wow, that’s impressive. Well, I’m glad you’re working for us and not one of our competitors! So, you’re a member of our estate litigation practice group. Tell us about that—why do we have an estate practice group, and how many people are in it? What does your team do?

The Role of FH&P’s Estate Litigation Practice Group

Kevin: Our estate practice group consists of about six lawyers. We meet at least once a month to discuss our cases, share insights, and troubleshoot any issues we might be facing. One of the biggest benefits of working in a group like this is getting input from multiple legal minds. It helps us ensure we’re on the right track with our legal positions, and our clients appreciate that added layer of analysis.

Clay: Sounds like four million an hour!

Kevin: Well, we bill for our time, but not for all six lawyers at once! So, I wouldn’t say it’s free, but it’s certainly not that expensive.

Clay: Does your practice group consist of both solicitors and litigators?

The Value of a Full-Service Estate Law Firm

Kevin: Yes. We have at least one or two solicitors—the people who draft estate documents—and the litigation team, which handles disputes and trials related to estates. Having both sides involved is really valuable because estate planning and estate litigation go hand in hand.

Tanvir: It’s so important for solicitors to see the other side of things. There’s no better way to improve drafting skills than by understanding what ends up being litigated in court. When you see real-world disputes over wills, you gain a deeper understanding of the issues that might not be obvious at the drafting stage.

That’s one of the great things about being in a full-service firm—we can pass files between solicitors and litigators. Though hopefully, we’re not passing too many wills to litigators!

Clay: Exactly. I think solicitors and barristers—the lawyers who go to court—sometimes work in silos. But if you’re drafting a will, it’s incredibly useful to discuss it with someone who might have to defend or challenge it in court. It just makes sense.

Kevin: Absolutely. That’s one of the benefits of being in a full-service firm. Whether it’s our construction group or estate group, we have a team in place that can handle all aspects of a case, and that’s a huge advantage.

Common Estate Disputes: Will Variation Claims and Will Challenges

Clay: Now, you’re here to talk about the litigation side of estates. What types of cases do estate litigators typically deal with?

Kevin: Are you asking about my practice specifically, or estate litigation in general?

Clay: Both.

Tanvir: Yeah, both! But what’s the most common issue that leads to litigation?

Kevin: Wills variation cases are probably the most common in BC. That’s when a beneficiary believes a will is unfair and challenges it in court. Most often, it’s adult children who have been disinherited or are receiving a substantially smaller share of the estate than other beneficiaries.

They argue that the will is unfair under the circumstances and ask a judge to vary it—to change its terms.

Clay: Can anyone do that? What if a friend leaves me something in their will? Can I argue that I should get more than their children?

Kevin: If you’re just a friend, it’s unlikely. You might have a case if you provided services or had a unique relationship, but primarily, these cases involve children and spouses. Occasionally, elderly parents or grandchildren are involved, but it’s usually direct family members.

Contesting a Will: Lack of Capacity and Undue Influence

Clay: So, I guess it often happens when a parent favours one child over another or has been estranged from a child?

Kevin: Exactly. That’s a very common scenario. In fact, there’s a big case that came out recently that deals with this issue—we can talk about that later.

Other than will variation cases, another common dispute is over the interpretation of a will. One party says the language means one thing, while another claims it means something different. When that happens, we have to go to court and ask a judge to interpret it.

Clay: Who brings those disputes? The beneficiaries?

Kevin: Yes, it’s always the beneficiaries because they have the most at stake. Another major issue is whether a will is even valid.

For example, maybe the will is unsigned, lacks witnesses, or was written by someone who didn’t have the mental capacity to make legal decisions. Or maybe they were being influenced by someone with bad intentions.

Clay: You hear about that in the news all the time—people worming their way into an elderly person’s life and suddenly becoming the sole beneficiary. Would that kind of situation fall under estate litigation?

Kevin: Yes. Estate litigation includes any legal dispute involving a deceased person’s assets. That could mean challenging a will’s validity, disputing how assets are distributed, or even dealing with unpaid taxes that CRA is going after the estate for.

Clay: You mentioned tax disputes. That’s an interesting one—how does that come up in estate litigation?

Kevin: It usually happens when CRA goes after an executor or the estate itself for unpaid taxes. Many people don’t file their taxes properly, and if they owned businesses, there might be GST or HST issues. It can create a real mess.

Clay: And then you’re working with CRA to resolve it or arguing that the assessment is incorrect?

Kevin: Exactly.

Clay: That’s why planning is so important—it can save a lot of headaches.

Kevin: Absolutely. And that’s why having solicitors involved in our estate team is so valuable. They take lessons from our litigation cases and adjust how they draft estate plans accordingly.

Tanvir: One of the biggest questions clients have is, “What happens to my taxes after I die?”

Kevin: The answer is—you’re not escaping them!

The Cost of Not Having a Will or Power of Attorney

Clay: One thing you mentioned earlier—it’s amazing how many people don’t deal with their taxes. But another big issue is how many people don’t have wills or any kind of estate planning. Is that a common source of disputes that you deal with?

Kevin: Absolutely. If you don’t have a will, you’re leaving it up to BC legislation to dictate how your assets are distributed, and that may not align with what you actually want. So, getting a will in place is incredibly important.

Clay: Yeah, and we always see people having conflicts about who wants to be the administrator...

Kevin: That’s another common dispute—fights between siblings, spouses, or children over who gets to administer the estate.

Tanvir: And it can result in unnecessary costs too. If there are minors involved, funds could end up going to entities like the Public Guardian and Trustee instead of directly to family members.

Kevin: Exactly.

Clay: Maybe this isn’t strictly estate litigation, but it comes up in planning—powers of attorney. That seems like a relatively inexpensive step that can prevent major problems. Can you talk about what happens if someone doesn’t have a power of attorney in place and then becomes incapacitated?

Tanvir: A power of attorney allows someone to act on your behalf, essentially doing anything you could do yourself when you’re unable to. One of the biggest areas where this is important is property.

I see a lot of first-time homebuyers—young families buying their first home—and they don’t realize that without a power of attorney if one spouse works in a high-risk job and something happens, they could be left in a difficult situation.

If that person is incapacitated—whether from an accident, an illness, or even just being stuck at a remote work site—a power of attorney allows their spouse to manage financial matters, sell or refinance property, and handle other critical tasks. Without it, you need a court order, which can be expensive and time-consuming. A simple $350 power of attorney can prevent all of that stress.

Clay: Yeah, that’s a no-brainer.

Kevin: I actually handled a case a couple of years ago where this exact issue came up. The person didn’t have a power of attorney, and their children ended up in a legal battle over who would make decisions.

Clay: And without a power of attorney, that means a committee application, right?

Kevin: Exactly—a full-court application. And in this case, it was contested, so legal fees ended up at about $75,000.

Clay: $75,000? And all of that comes out of the person’s estate?

Kevin: Yep.

Clay: So, $350 could have prevented a $75,000 legal fight?

Kevin: Pretty much.

Clay: That’s a great example of why it pays to do some planning upfront. You either spend a little on a lawyer now or a lot later.

Tanvir: Exactly. It covers the “what-ifs.” People always ask, “What if this happens? What if that happens?” A power of attorney takes care of many of those situations and makes things much easier for your family.

Of course, there are limits—you can’t use a power of attorney to write or change a will—but in general, it simplifies a lot.

Kevin: And typically, when you’re setting up a power of attorney, you’re also doing your will and other estate planning at the same time.

Tanvir: At FH&P, we offer a complete estate planning package: a will, a power of attorney, and a representation agreement. Not everyone needs all three, but they work together to provide full coverage.

Clay: I don’t want to scare our listeners—$75,000 is a worst-case scenario, right?

Kevin: Oh, absolutely. That was an extreme case.

Clay: So the key takeaway here is that there are solutions. If you feel like you’ve been unfairly disinherited, or if there’s a dispute over a will, don’t assume you’re out of options—come talk to us. The law is designed to follow common sense, and there are remedies available.

Even if a loved one passes away without a will, that doesn’t mean all is lost. There are ways to resolve these issues.

Kevin: Exactly.

Clay: All right, that wraps up today’s episode. Thanks for listening, and we’ll see you next time!

Estate disputes are more common than many people realize, but proactive planning can help prevent them. Whether it’s ensuring your will is clear, appointing a power of attorney, or resolving a legal dispute, our team at FH&P Lawyers is here to help. Contact us today!

Disclaimer: This material is provided for informational purposes only and should not be construed as legal advice on any subject matter. Consult with a qualified lawyer for advice on specific legal issues.