In an increasingly global society, it is not uncommon for families to have members, property, or financial assets spread across multiple countries. When a person passes away owning property in more than one jurisdiction, or when heirs live outside of Canada, the administration of their estate can quickly become complicated.
Cross-border estate disputes are among the most challenging matters British Columbia estate litigators handle. They often involve questions about jurisdiction, conflicts of law, probate recognition, taxation, and the validity of foreign wills. These cases require both technical legal analysis and careful coordination between lawyers in different countries to achieve a fair and efficient resolution.
The Growing Reality of International Estates
British Columbia’s diverse population and strong ties to global business mean that international estates are no longer unusual. Many BC residents own vacation properties in the United States, investment accounts in Europe, or family homes registered jointly with relatives overseas. Similarly, immigrants to Canada may maintain financial or real property interests in their country of origin, or they may inherit assets from relatives abroad.
When death occurs, each of these cross-border links can trigger legal processes in more than one jurisdiction. A will may need to be probated in multiple countries, or local courts may need to recognize a foreign grant of probate before property can be transferred. In other cases, disputes arise when heirs in one country challenge the distribution of assets located in another, alleging undue influence, incapacity, or breach of fiduciary duty by an executor or attorney.
How Jurisdiction Affects Estate Administration
The starting point in any cross-border estate matter is determining which court has jurisdiction over the deceased’s assets. In British Columbia, jurisdiction depends largely on where the deceased was “domiciled” at the time of death and where the property is located.
Generally speaking:
- Immovable property (real estate) is typically governed by the law of the place where the property is situated, known as lex situs.
- Movable property (bank accounts, investments, personal effects) is usually governed by the law of the deceased’s domicile (the country they intended to be their permanent home).
This distinction means that two or more sets of laws can govern a single estate.
Recognizing Foreign Grants of Probate in British Columbia
When a person dies, leaving a valid will that has already been probated in another country, the executor may seek to have that grant “resealed” in British Columbia. Resealing allows the foreign executor to manage and distribute local assets without starting a new probate process from scratch.
Under Rule 25-6 of the Supreme Court Civil Rules, the Supreme Court of British Columbia may reseal probate grants from certain recognized jurisdictions. However, a new probate application must be filed if the original grant was issued in a country not recognized by statute.
This often requires the foreign executor to retain a local lawyer and provide certified copies of the foreign will, death certificate, probate documents, and affidavits verifying the testator’s domicile and the authenticity of the foreign proceedings.
When Multiple Wills Are Involved
It is increasingly common for individuals with international assets to create multiple wills, each limited to property located in a specific jurisdiction. For example, one may govern Canadian assets while another covers property held in the United States or Hong Kong.
This approach can streamline estate administration by avoiding the need for resealing, but it also carries risks. If the wills are not carefully drafted, they may unintentionally revoke or override one another. Conflicting language, inconsistent asset lists, or differing executor appointments can result in overlapping authority and court challenges over which will is valid.
When disputes arise, BC courts will interpret the wills according to local law, with particular attention to the testator’s intent and domicile. Legal advice from practitioners familiar with both jurisdictions is crucial when preparing or litigating multiple will estates.
Cross-Border Wills Variation Claims
British Columbia allows spouses and children to challenge the distribution of an estate under section 60 of the Wills, Estates and Succession Act (WESA). A wills variation claim enables the court to alter the terms of a will that fails to make adequate provision for the testator’s dependants.
When a will includes assets in multiple jurisdictions, determining whether the BC court has authority to vary the will depends on the nature of the assets. Generally, a BC court can vary a will only to the extent it affects property located in British Columbia. Assets held abroad are governed by the law of the country where they are situated.
Conflicts of Law and the Doctrine of Comity
Cross-border estate disputes often require courts to decide which country’s law should apply to issues such as will validity, capacity, and inheritance rights. British Columbia courts apply established conflicts of law principles, guided by fairness, predictability, and international comity; the respect one jurisdiction gives to the laws and judgments of another.
In many cases, BC courts will recognize and enforce foreign judgments if they are consistent with natural justice, were made by a competent court, and do not violate public policy. However, courts may refuse to recognize a foreign order if there is evidence of fraud, lack of jurisdiction, or procedural unfairness.
The doctrine of comity encourages cooperation between jurisdictions, while also emphasizing the importance of understanding each country’s distinct legal framework. A will validly executed in one country may not meet the formal requirements of another, and succession laws can differ significantly from Canada’s.
Common Sources of Cross-Border Estate Disputes
Several recurring scenarios tend to give rise to litigation involving international estates:
1. Disputes Over Domicile
The question of where a person was domiciled at death can determine which country’s courts have authority and which laws apply. Disagreements arise when people divide their time between countries, maintain dual citizenship, or relocate late in life without clearly abandoning their former residence.
2. Foreign Assets and Tax Obligations
Even when the ownership of assets is undisputed, international estates can be complicated by tax issues. Some countries impose inheritance or estate taxes that do not exist in Canada; therefore, executors must navigate reporting obligations under treaties, such as the Canada–U.S. Tax Treaty. Missteps can lead to double taxation or penalties for non-compliance.
3. Executor Authority and Misconduct
An executor in one jurisdiction may have limited or no authority over assets in another country. When executors fail to disclose foreign holdings or act inconsistently with local court orders, beneficiaries may seek removal or replacement through BC’s Supreme Court.
4. Undue Influence and Elder Abuse
When elderly or vulnerable testators have family abroad, cross-border relationships can heighten the risk of undue influence or financial manipulation. Litigating such claims often requires cooperation between international witnesses and courts.
Practical Challenges in International Estate Litigation
Beyond legal complexities, cross-border estate disputes involve logistical hurdles that can slow or frustrate proceedings. Certified translations, cross-jurisdictional subpoenas, currency conversion, and international service of documents all add cost and delay.
Executors often need to consult with consulates, banks, and foreign courts to access or transfer assets. Verifying title or obtaining cooperation from local authorities may be difficult in cases involving developing nations or unstable political environments.
Experienced estate litigators work closely with trusted counsel in other jurisdictions to coordinate proceedings and ensure compliance with procedural requirements on both sides.
Preventing Cross-Border Estate Disputes
While some conflicts are inevitable, many cross-border disputes can be prevented through careful planning. A well-drafted estate plan should anticipate the implications of owning property or maintaining family ties in multiple countries.
Individuals with international connections should:
- Obtain legal advice in each relevant jurisdiction before preparing or signing a will.
- Consider whether multiple wills are appropriate, ensuring each expressly limits its scope to assets within a specific country.
- Confirm that executors are capable of acting internationally and that alternate executors are appointed where required.
- Maintain detailed records of asset locations, account numbers, and title documents to assist future administration.
- Keep tax implications in mind, particularly when transferring assets across borders.
By taking these steps early, individuals can significantly reduce the risk of disputes and ease the burden on their loved ones. However, when disagreements or challenges arise, consulting early with an experienced estate litigator can help avoid unnecessary cost and delay.
Contact Meridian Law Group in Vancouver for Knowledgeable Estate Litigation Services
If you are facing an estate dispute involving assets or family members outside Canada, the experienced team at Meridian Law Group can help. Our estate litigation lawyers handle complex cross-border estate and trust matters involving multiple jurisdictions. We work closely with international professionals to protect your interests and achieve effective resolutions in British Columbia and beyond. To book a consultation, please call (604) 687-2277 or contact us online.
