Go back to news + community


Wills and Estate Litigation

May 29, 2024 by Clay Williams, David Horvath, Tanvir Gill

kelowna law firm

In this episode of FH&P Lawyers Law Talk, Clay Williams and Tanvir Gill are joined by David Horvath, from the FH&P Lawyers Estate Litigation Practice Group. This episode discusses the complexities of estate disputes, particularly disinheritance cases. David explains the legal options available for disinherited children and spouses, highlighting the importance of proper documentation and the 180-day window for filing claims. Delving into the emotional and challenging nature of estate litigation, including issues like undue influence and the balance between moral and legal obligations, this conversation sheds light on the sensitive and often contentious aspects of handling estate disputes.


Tanvir: If you or somebody you know has been disinherited through a will, maybe a spouse or a child that isn't getting what they think they deserve, you're going to want to listen to this.

Clay: Welcome to FH&P Lawyers Law Talk. I'm Clay Williams. I'm a partner at FH&P Lawyers, and with me as usual, is Tanvir Gill. Welcome Tanvir!

Tanvir: Thanks Clay!

Clay: And we have a special guest today, David Horvath from FH&P Lawyers Estate Litigation Practice Group. Welcome, David.

David: Thank you for having me!

Tanvir: Something I love about our firm is the fact that we're full-service, so we do tons of different practice areas and something we want to shed a bit of light on is our Estate Litigation Practice. So who is in our practice group, and what type of law do you practice?

David: Well, right now it's Wendy Cheung, myself, Jen Schreurs as well as Wes Shields. We practice disputes regarding Estates. So if a person dies, their stuff gets put into an estate, and people can fight about it. For instance, if you die and you leave a child and you don't leave anything for the child, they can fight over the estate because they want something out of the estate.

Tanvir: And we get this question a lot well, I know I do because when drafting Wills for clients, you will always get that client that says, “I don't want this child in my will” or “I don't want my wife in my will” and there might be reasons for it, it might be a marriage that happened later on in life, so it might not have been the you know spouse that a majority of those assets were built with, it might be a child that got a lot throughout the parents' lifetime, and now the parents decided that there isn't anything else to give that child but either way they are disinheriting them in a way through the will.

David: Yeah, exactly and then once the will gets disclosed to said disinherited child, what happens is, they're understandably upset, and they come and see us, and we tell them, you know, you have 180 days to sue. It's one of the things that is very important, but it'll depend on why the parent disinherited. So your case really depends on that.

It could be as simple as they didn't like your haircut. It can be as ridiculous as you didn't clean your room. It can be as serious as you never came to say hello while they were suffering from cancer, you never took care of them, so it's really an area of law where practically what you're doing throughout the case is airing your family's dirty laundry. That's really what happens from when you come to the office, you're disinherited to the end of the trial. Because why you were disinherited is very sensitive to people, and it involves a lot of emotion

Tanvir: And that person is obviously not there anymore,

David: No, and that's the difficulty with these cases. All you have is their will, and sometimes the will, and hopefully the will says why they were disinherited, so hopefully, they come to us, and there's a lawyer that says you know you need to write down why you're disinheriting your son or daughter or your spouse.

Clay: So the practice area really seems to be "I've been disinherited, what can I do about it" or as an executive, I've got a will where somebody was disinherited and what can we do about it. Is that fair?

David: The practice area is more broad, so estate litigation is very broad from, there's undue influence, so if the will-maker had dementia, for instance, someone exerts undue influence, and they change the will, for instance, that's an area. Wills variation is very broad in a sense, so disinheritance is just one part of that, but disinheritance itself is fairly interesting because people have different reasons why they disinherit and not everybody can vary a will. Like if it's your brother or a cousin they can't vary a will because they've been disinherited.

Clay: That's what I was going to ask. What is the group of, I guess, people that can challenge a will?

David: Right, it's children and spouses, so whatever that means within the bounds of the legislation, and the legislation is the Wills States and Succession Act. So what is a spouse? That act defines that it's someone or it's not usually - it is, someone who has been in a marriage-like relationship for two years prior to the death of the deceased. You can have multiple spouses,

Clay: Yeah, I'd heard that. That sounds exhausting!

Tanvir: Wife and the girlfriend or…

David: Girlfriend, boyfriend and another wife or two, multiple spouses... Yeah, it can get difficult, and frankly, it can get expensive once you go into litigation. So if you have multiple spouses, they may all want a piece of that estate once you die.

Tanvir: And what about children? What if you have an adopted child

David: so an adopted child is a child under the Act. So a child is defined as a biological child or an adopted child but not like a stepchild or someone a person has lived with, so they could challenge the estate if they've been disinherited or they didn't get anything in the estate or the will.

Tanvir: Sometimes, we have clients that have a fairly good reason for why they are leaving a child out or why they might be distributing a little bit differently due to when that relationship started and something we usually draft is a Will's Variation Memo. Our will might speak to it, but we also do a separate document, which will talk about the details of why they are disinheriting that individual. How helpful is it to you guys after the fact?

David: Oh, it's super helpful! It is one of those things that we look at. The first thing when someone comes into our office, we look at is whether is there something in the will or attached to the will or something that indicates why the person was disinherited, and that's what the court is going to look at. We don't have the person who died, they're not in the courtroom to provide evidence, so all we have is what you drafted when you drafted the will,

Clay: You know, the first thing that comes to mind, though, is when you said, "But we don't have the person who drafted it," so it's only one side of the story, so I would think that there's always going to be an argument. The kid was so bad I disinherited this kid. The kid says, "No, I wasn't able to have a relationship because my father was so bad," or something like that. What struck me and has been going through my mind is your airing his dirty laundry. It sounds like it could be a pretty tough trial.

David: Oh, it's messy. It's tough. Evidentiary issues are difficult in these matters, so it's one kid saying Look, Dad was awful to me, but I was there for them. Dad's not there to say otherwise. All we have is other people coming in and saying, "That's not true!" or "That is true!". So we have we can get other witnesses in court to say whether these things happened or not.

Clay: Wow!

David: So, it can get pretty difficult once you're in that courtroom and that's why having that additional document, it's helpful, it's very helpful.

Tanvir: I always find it funny because clients will say, "I don't need anything else." They'll always say, "No, my child wouldn't do that or my spouse wouldn't do that." But you know, I feel like people don't realize that when it comes to money, people will do the craziest things, and starting a variation challenge is not that crazy.

Clay: Yeah, brothers and sisters suing each other and just tearing families apart, I bet you see that quite a bit.

David: Oh yeah, and you have such a limited time to file these claims you have 180 days. That's what you have.

Clay: Well that's really important for our listeners, so you got to get on this then!

Tanvir: And 180 days from when?

David: Probate. So once they grant a probate which takes a bit of time, a couple of months sometimes, and then that hits, you get that from the courthouse. That's the day the clock starts ticking. 180 days, that passes, and you're done.

Clay: Don't wait around too long, better go and see David pretty quickly!

David: Exactly, and then we can tell people, "Look, you do have a case; You don't have a case; Is questionable…" Then you file, and then you go from there, but procedurally, it can get really difficult and expensive for all sides, so it's important to have a good will and a good secondary document to indicate why you're disinheriting. But you're right, it's airing your dirty laundry. That's all that trial is going to be about.

Clay: Well, there are just so many different parameters, like one kid gets disinherited and is fighting, and the other kid gets part of the estate, or two kids got disinherited, and some didn't, or you know, second wives, or you know, all kinds of crazy stuff.

Tanvir: You also have to think about how much money is going to go into lawyer fees and just the trial fees because it's expensive to go to trial. So what should be going to benefit beneficiaries or could be going to beneficiaries is then going to get pretty sliced up when it's quite a bit of a fight.

David: Exactly. If you have multiple beneficiaries that are fighting over the estate, let's say you have a million dollars, you have four beneficiaries fighting, that's a lot of lawyers to pay, and these things get difficult and expensive from all sides and where's the money coming from? So at the end of the day,

Clay: It's best to die broke, is that what you're going to say?

David: Yes, but also get a good lawyer. Then come to FH&P, and we can advise you properly.

Tanvir: Spend all your money before you die! Totally kidding!

Clay: Do you have anything else to add?

David: Not really. I mean, there are always fun cases that come out of the court, so we can talk about that but other than that...

Tanvir: Give us the funnest scenario you've seen so far? I don't know; things that we find funny as lawyers might not be really funny…

Clay: That's the first thing that I was thinking!

David: It's not funny but it's it's an interesting case where the Father ended up disinheriting his twins. So he and his then-girlfriend had twins, and he wanted her to have an abortion. But she said no, and she had the kids anyway. He went away and did not involve himself with the children. Four years later, she dies (mom dies), and then there's a custody battle, and then Dad shows up in court saying I want the kids. The judge did not agree with that. They went to some family friends, and he disappeared again from their lives. Fast forward to probably 20 years, he dies, and in his will, as we talked about, he indicated, "Look, I'm not leaving my illegitimate children anything." That's what he called them. And they rightfully sued, and they ended up getting 70% of his estate worth almost a million dollars

Tanvir: Did he have other children?

David: He did. So the last 30% went to that child. The court looks at why you did that and what steps you took to be a part of their lives…So another case is where you have a child you don't know about, and they come back, and they could get part of your estate even if you have no relationship with them whatsoever. They could get as little as 1% of the estate.

Clay: Would you have to know about them, though? Before you died?

David: Nope.

Clay: Wow, that's incredible!

Tanvir: So imagine the parents who know about children they've had, maybe with a previous relationship, and decide they don't want a relationship with that child. They think it's all fine, and they don't need to do anything, but that's not always the case.

Clay: Actually, that's a good point because I think when we were talking about while we were waiting to get the camera set up, there's actually a responsibility on parents to try, I guess, isn't there?

David: Exactly, that's the legal analysis the court engages with is this idea of your legal obligations versus your moral obligations, and that's contrasted with the willmaker's ability to determine what happens to their estate. So that's the balancing analysis the court engages with. And you know if, like this father with the twins, he had a moral obligation to his children and he took or tried to take active steps to be in their lives and then, when it didn't suit him, he left. So everybody has that moral obligation to help your children through life, and he chose not to and that was the result of that.

Clay: Wow! Okay, well, Thank You, David! Do you have any other questions for David?

Tanvir: Something I always ask our guests is to tell us and our viewers something about you that you wouldn't readily think people know.

David: Well, I'm Hungarian. I was born in Hungary, and English is not my first language. I am ESL. English is my Second Language. I always say that, and everyone's surprised! that's something interesting. I guess

Tanvir: That is interesting. Well, don't feel bad about ESL. I was ESL too.

Clay: Really? Oh, wow! I feel bad about my English skills

David: So I still remember my ESL teacher. That was an interesting experience.

Tanvir: I was ESL and blind in kindergarten they couldn't figure out where my behavioural issues were coming from it's because I needed glasses I couldn't see anything!

Clay: Of course, I was perfect throughout my childhood

Tanvir: Yonder Yonder 100 years ago!

Clay: All right, so until next time, Thank You David! And Tanvir and I will see you again!

Questions? We're ready to help. Please contact Clay Williams or Tanvir Gill, or any of the team at FH&P Lawyers.

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.