- Whether a claim based on your contributions to property can succeed, and what interest it could give you, depends on your situation, so it is worth confirming with a lawyer.
- Property held by survivorship sits outside the estate.
- Other estate claims have their own deadlines, such as 180 days after the grant for a wills variation claim.
Some people give a lot to someone who later dies: a caregiver who gave years of unpaid help, or a common-law partner who put work and money into a home that was in the other person's name. When the estate is divided under the will, they may find they receive little or nothing.
A constructive trust claim is one way people in that position ask a court to recognize an interest in property. This article explains the idea in general terms and shows how it sits alongside other estate rules. Whether a claim is available depends heavily on the facts, so legal advice early is important.
This article covers the law of British Columbia.
What a constructive trust claim means
What a constructive trust is, and whether it could apply to an estate you are involved in, depends on your situation, so it is worth confirming with a lawyer. In an estate dispute, the person making the claim says that their contributions mean they should have an interest in particular property, and that the estate should not simply keep the full benefit. The legal basis for this kind of claim, and what you would need to show, depends on your situation, so it is worth confirming with a lawyer.
The tests the court applies, the remedies available and the time limits are fact-specific, and a lawyer can confirm how they apply to your situation.
Who might consider this kind of claim
- A caregiver who provided services or money over a long period.
- A common-law partner who contributed to property held in the other person's name.
- A family member who worked on or paid for a home, farm or business.
Whether someone is a spouse matters for other rights. For the Wills, Estates and Succession Act, spouses are married persons, or persons who lived in a marriage-like relationship for at least 2 years.
What is in the estate and what is not
The deceased's estate vests in the personal representative without further declaration or order. Land that passes by survivorship is not part of that process, because the devolution rule for land applies unless there is a right to land by survivorship. When a joint tenant dies, the survivor takes the deceased's interest.
This affects who you would name in a claim and which property is in question. A lawyer can help identify what the estate actually holds.
Other claims that may apply
A constructive trust claim is not the only route. The court may order provision from the estate for a spouse or child not adequately provided for by the will, and a wills variation claim must start within 180 days after the grant is issued in BC.
A surviving spouse may also acquire the spousal home from the personal representative. The right must be exercised within 180 days after the grant is issued unless the court extends the period, and it is exercised by written notice.
| Claim | Who it is for | Time point |
|---|---|---|
| Wills variation | Spouse or child not adequately provided for | Starts within 180 days after the grant |
| Acquire spousal home | Surviving spouse | Within 180 days after the grant unless extended |
| Constructive trust | Person whose contributions may support an interest | Depends on the facts; confirm with a lawyer |
What to do next
The personal representative must not distribute the estate within 210 days, subject to the exceptions in the section. If an estate is insolvent, the personal representative must apply the proceeds in the statutory order of priority for debts. Because of this, it helps to raise your claim early, in writing, before assets are distributed or used up.
- Gather proof of your contributions, such as bank records, receipts, messages and photos.
- Write down dates, amounts and what you did, while memories are fresh.
- Find out whether a grant has been issued, since some deadlines run from it.
- Do not wait to see how the estate is distributed.
- Speak with a lawyer about which claims suit your facts and what deadlines apply.
Frequently asked questions
Can a caregiver claim against an estate?
Possibly. A caregiver may be able to ask a court to recognize an interest in property because of their contributions. Whether that is available depends on the facts, and a lawyer can assess it.
Does a constructive trust claim have the same deadline as a wills variation claim?
Not necessarily. A wills variation claim must start within 180 days after the grant is issued in BC. The time limit for other claims depends on the claim and the facts, so confirm it with a lawyer promptly.
Is jointly owned property part of the estate?
Property passing by survivorship sits outside the usual devolution of land. When a joint tenant dies, the survivor takes the deceased's interest.
Does being a common-law partner give me rights?
For the Wills, Estates and Succession Act, a spouse includes someone who lived in a marriage-like relationship for at least 2 years. Other rights depend on your situation and the claim you make.
Sources
- LTSA Land Title Practice Manual – s. 269 — ltpm.ltsa.ca
- Wills, Estates and Succession Act, BC Laws — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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