Contesting a Will in BC: Understand your Legal Rights

Have you recently discovered a will that does not reflect the intentions of your loved one? Are you concerned that someone may have influenced or manipulated the will-maker?  Are you unsure about the fairness of the gifts in the will?

Contesting a will is an important decision, and understanding your legal rights, inheritance rights, and the process involved is crucial to making an informed choice.

In British Columbia, the Wills, Estates and Succession Act (“WESA”) governs the process of contesting a will, setting out clear guidelines on when and how a will can be challenged.

The outcome can vary if you decide to work with a lawyer to contest a will. In some circumstances ,the will is set aside completely as if it never existed; in other circumstances, some of the provisions of the will can be modified or varied without setting aside the will completely.

What are the Legal Grounds for Contesting a Will?

There are several legal grounds for contesting a will in BC. A family member or other interested party may challenge a will in court on the grounds that the will is legally invalid. Validity challenges aim to ensure that the will truly reflects the will-maker’s intentions and complies with legal requirements. Some grounds for contesting the validity of a will include:

1. Lack of Testamentary Capacity: The will-maker, asthe person making the will, must have had the mental capacity to understand the nature and effect of making or amending their will, the extent of their assets, and the potential claims of beneficiaries. If the will-maker had dementia or another cognitive impairment at the time the will was made, this could be grounds for contesting the will.
2. Undue Influence or coercion: A will may be considered invalid if someone exerted pressure on the will-maker or coerced them to create or change their will in a way that did not reflect their genuine intentions. If you suspect undue influence was exerted on the will-maker, you can ask the court to invalidate the will.
3. Improper Execution of the Will: A common reason to contest a will in BC is that it did not follow the formal requirements of WESA. A valid will must be in writing, signed by the will-maker, and witnessed by two individuals who were present when the will-maker signed the will. If these formalities were not followed, the will may be challenged in court.
4. Ambiguity in the Will: A will can be challenged if it is ambiguous or unclear. The Court can interpret the will to resolve the ambiguity.
5. Fraud or Forgery: If there are suspicions that the will has been forged or tampered with, it can be contested on the grounds of fraud or forgery.

In addition to contesting the validity of a will, a legally valid will may be challenged if it fails to provide adequate support for the will-maker’s spouse or child. Specifically:

6. Failure to provide adequate provision for a spouse or child: Section 60 of WESA allows a spouse or child of the will-maker to apply for a variation of the will if they believe the will does not provide “adequate, just, and equitable” support. If a child or spouse has been disinherited, either partly or wholly, they could be entitled to challenge the terms of the will and apply for a wills variation claim.

Who Can Contest a Will in BC?

Wills Variation Claims: Under WESA, only certain individuals have the legal standing to bring forward a wills variation claim:

• The Deceased’s Spouse, including legally married spouse and a common-law. If you are unsure about your legal standing as a spouse, you can learn more here.
• Children of the will-maker, including biological and adopted children.

Siblings, stepchildren, grandchildren, and other relatives of the will-maker do not have a legal standing to bring a wills variation claim. In some cases, individuals who are not directly entitled to apply might still have the right to seek justice through other legal avenues, such as unjust enrichment or constructive trust claims.

Contesting the validity of a will: While contesting the validity of a will can be initiated by the spouse and children of the will-maker, it can also be brought by a broader group of individuals, including:

• Beneficiaries such as those named in the most recent will, beneficiaries from a previous will, or heirs who would inherit under intestacy laws if the will is deemed invalid.
• Creditors including any institutions or individuals to whom the deceased owed money or have a financial interest in the estate may also have legal standing.

Time Limit for Contesting a Will in BC

Estate litigation can be complex, and you must file your claim within specific time limits:

• For a wills variation claim, you must file your claim within 180 days from the date of probate.
• To challenge the validity of a will, you must do so within two years from the date you knew, or should have known, the grounds for the claim.
• In cases involving undue influence or lack of capacity, early legal action is essential.

If you are considering contesting a will in BC, it is essential to speak with an estate litigation lawyer as soon as possible to ensure you don’t miss any important deadlines.

Need Help with a Will Dispute?

If you are seeking more information about your legal rights to contest a will, inheritance rights, or believe you have grounds to challenge a will, please contact one of our estate litigation lawyers for a free consultation.