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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 99954
Experience:  Lawyer
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My mother is a beneficiary in a will and granted the

Customer Question

My mother is a beneficiary in a will and granted the deceased's property subject to a Life Estate in her favour. The property is being given to the deceased 2 sons 50/50 upon the death of my mother. However, my mother and the deceased were living as Common Law partners. This is in B.C. and is now over 6 months after Probate. Is it feasible to contest the will on the basis of the Law governing Common Law status and so the property should be given to my mother? I would appreciate your advice. Thank you.
JA: Has a land trust agreement been finalized? What are its basic terms?
Customer: I don't know exactly what is "a land trust " agreement. But if it's the land/property being written into the names of the 2 sons, then I don't think so.
JA: Because laws vary based on location, what state are you in?
Customer: B.C.
JA: Anything else you want the lawyer to know before I connect you?
Customer: No, I don't think so.
Submitted: 8 months ago.
Category: Canada Law
Expert:  Debra replied 8 months ago.

Hello! My name is***** you for your question. I'm reviewing it now, and will post back again shortly.

Expert:  Debra replied 8 months ago.

I am sorry for your loss.

How long did your mother live with her spouse for?

Are there assets aside from the house?

If so whose names are ***** *****?

When was the house acquired?

Customer: replied 8 months ago.
They started living together in 2003.
By acquired, if you mean by the deceased, then it was during 1950s.
Expert:  Debra replied 8 months ago.

What did the deceased leave her in the Will if anything?

Were there no bank accounts or investments?

Customer: replied 8 months ago.
she was left 30% of the balance from the estate. There were bank accounts.
Customer: replied 8 months ago.
By 30% I mean from the balance of money in the estate.
Customer: replied 8 months ago.
She was living with the deceased in the property I mentioned.
Expert:  Debra replied 8 months ago.

She is not entitled to the house.

What she is entitled to is 1/2 of the total matrimonial property.

And the house is not matrimonial property as it was brought into the relationship.

But she is entitled to share in the increase in value of the house from 2003 until the present day.

So to find out if what she got is enough you add up all the money in their accounts, all their investments etc and you also add in the increase in value of the house.

She should have 1/2 of that total and if she does not then she can make a claim to the estate.

But if she has bank accounts that were in her own name alone or held jointly that she now gets you have to count that as well. She does not get 1/2 the estate. She has to end up with 1/2 of all matrimonial property and if she did then no claim to the estate will succeed.

Do you see what I mean? It is very complicated and I am sorry about that.

Please feel free to post back with any follow-up questions you may have. If you don't have any then I hope I have earned a 5 star rating but if you don't feel that I have please don't hesitate to reply back and let me know what more I can do to assist you. Finally, please know that even after you rate me I will be here for you and you can ask follow-up questions if you think of them later on at no further charge of course.

Customer: replied 8 months ago.
The deceased's 2 sons were given 35% each of the money while my mother was given 30%. And as I said the 2 sons were given 50% each of the property. So bearing that in mind, as you state my mother is entitled to contest the will and she should get 50% of the property and the money - is that in principle correct?Also as the will was read during 2014, is it possible for her to make a claim in British Columbia, Canada?
Expert:  Debra replied 8 months ago.

You have not quite understood what I said. The house is not shared.

Here is an example of how this works.

Let's say that from 2003 until 2014 the house increased by $100,000. That means only the $100,000 is matrimonial property.

Then lets say the rest of the money in the estate added up to $500,000.

And then let's say your mother had money of her own and it added up to $50,000 and there was a joint account that she got with another $50,000.

So the total matrimonial property is:

$100,000 - increase in value of the house

$500,000 - all other assets in the estate

$100,000 - what your mother has

The total is $700,000.

So she should have $350,000 but she only has $100,000 before she gets money from the estate. So she was entitled to get another $250,000 from the estate.

If she did not get that (this is just an example and you need to use the real numbers but follow my process) then she could have made a claim.

But it is actually too late in any event.

I just felt that you would feel better knowing whether she even had a valid claim.

Is that a bit clearer now?

Customer: replied 8 months ago.
Thank you it's clearer now.You say it is too late, but as the will did not follow the correct course of the Law, does that not mean that it can be contested? It was a Notary who the deceased had to make the will, and the Executor (his son) had a lawyer to carry out Probate etc.
Expert:  Debra replied 8 months ago.

The limitation period for suing is 2 years in BC so it is too late to sue unless the deceased died at the end of the year.

But it is also too late to make a claim to the estate as she had six months.

Customer: replied 8 months ago.
He died on 25 December 2013. My mother is now 92 and had 2 emergency hospital situations and was admitted to a nursing home about 18 months ago where she still is living. I don't suppose this could affect the possibility of a case?
Expert:  Debra replied 8 months ago.

Well, there is a bit of hope then. If your mother was not mentally competent when he died or lost mentally competency before the 6 months were up then she may succeed. The limitation period does not run against someone who is mentally incompetent.

Customer: replied 8 months ago.
Ok thanks.
I see I have been charged $47 is this correct?
Expert:  Debra replied 8 months ago.

I don't know.

I am a practicing lawyer and don't work for the site. I just log into the site and see a list of questions and choose which to answer.

I never know personal information so I just see your username and your stats. That means how many questions you've asked and of those how many are rated. I don't see what you agreed to pay or what you were charged or anything at all like that.

I get a portion of what you paid the site when you rate me positively but that doesn't tell me what you paid the site.

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