Will Disputes Lawyers in BC

By preparing a Will, a person gets to decide what happens to his or her property after death. Last wishes should be clearly communicated in Wills so that there is no question about what the will maker intended.

Unfortunately, Wills are not always clear. Confusion about last wishes may arise after the death of a will maker. Mistakes and oversights happen when Wills are prepared. Circumstances surrounding the preparation of the Will may be suspicious. The estate trustee may be mismanaging the estate or treating beneficiaries unfairly.

When difficulties arise after a person’s death, Will dispute lawyers can help. Onyx Law Group has a team of estate litigation lawyers with the experience and knowledge to resolve estate disputes as smoothly and peacefully as possible, book a free consultation to solve your estate disputes without delay.

This page explores wills disputes and the important role that estate litigation lawyers play in navigating wills challenges.

Legal Framework Surrounding Will Disputes in British Columbia

There are many reasons to dispute a will. The main reasons relate to questions of validity of the Will, interpretation of final wishes, and administration of the estate by the executor.

Disputes Relating to the Interpretation and Validity of a Will

In British Columbia, there are only a few legal grounds for contesting a Will:

Lack of testamentary capacity

Contesting a Will on the grounds of lack of testamentary capacity involves arguing that the person who made the Will (the testator) did not have the mental capability to understand the nature and implications of the Will at the time it was made.

Undue influence or coercion

The Supreme Court can set aside a Will if the party challenging the Will can prove undue influence on the will maker (for example, suspicious circumstances suggesting the will maker was unduly influenced, such as threats or pressure from a family member or caretaker to the degree that the Will does not reflect the will maker’s true testamentary intention).

Improper execution of the Will

A valid Will must meet the formal requirements set out in s. 37 of the Wills, Estates, and Succession Act (WESA): it must be written and signed by the will maker in the presence of two witnesses who also sign the Will. It’s not a valid Will if it doesn’t meet those formal requirements.

Fraud or forgery

A Will that appears to be faked or forged can be challenged in Court. These types of will disputes are particularly common for handwritten Wills.

Ambiguity in the Will

A Will can be contested if it is ambiguous or unclear (e.g., the list of beneficiaries is not clearly defined). The Court can consider extrinsic evidence to interpret the Will and resolve the ambiguity.

Disputes Regarding the Fairness of a Will: Wills Variation

In Canada, whether an inheritance should be distributed equally between siblings has been a subject of legal debate, for example, the case of Grewal v. Litt we can see a situation where an unequal inheritance between siblings led to a legal challenge.

Wills variation claims are used to address unfairness in a Will. Certain beneficiaries have the right to ask the Supreme Court to vary the terms of a deceased person’s Will on the basis that they were unjustly disinherited or treated unfairly. Section 60 of the Wills, Estates and Succession Act gives the Court the power to vary an otherwise valid Will to impose an adequate, just, and equitable distribution of estate assets.

Disputes with Trustees, Executors, or Estate Administrators

Sometimes, the issue is not with the Will, but rather how the estate is being handled. Estate administration does not always go smoothly. Disputes and conflicts of interest may arise. Communication may break down or the estate trustee may be refusing or failing to keep beneficiaries reasonably updated. Beneficiaries may suspect that the estate trustee has mismanaged estate assets, failed to pay estate debts, used estate funds for their personal benefit, committed fraud, or breached their fiduciary duty in some other way.

Disputes on the conduct of an estate trustee can often be resolved informally, especially once estate litigation lawyers are involved. In other situations, intervention by the Court will be necessary (e.g., a court order removing an executor or estate trustee) to recover stolen inheritance. 

Who Can Dispute a Will in BC?

Legal standing to dispute a will in BC is an important consideration in all will disputes. Only certain people are eligible to start estate litigation to resolve an estate dispute. Legal rights to dispute a Will depend on whether the party challenging the Will is a surviving family member, estate trustee, or person with a legal interest, beneficial interest, or financial interest in the estate.  

For example, only the spouse or child of a will maker has the legal right to bring a wills variation claim. A dependent child, adult child, or surviving spouse can ask the Court to vary the terms of the Will so that it distributes estate assets in a way that is “adequate, just or equitable.” Wills variation claims are commonly brought by adult children against their parent’s estate to remedy unfairness or unequal treatment compared to siblings.

Similarly, only certain people are permitted to bring legal action on behalf of a deceased person’s estate. Legal action may be needed to recover estate property, enforce a right, or to challenge an executor/estate trustee. These claims, which are possible by section 151 of the Wills, Estates and Succession Act, can only be brought by “specified persons” including beneficiaries and intestate successors.

If you’re wondering whether you have legal standing to start litigation, contact our wills dispute lawyers. The law in this area is complex and there are several technical grounds and rules to consider. We can conduct a close examination of the circumstances and advise you on the types of claims that are open to you.

The legal tests and limitation deadlines behind each claim

The different will disputes described above share one thing: each is governed by a defined legal test and a hard deadline, and missing either can end a claim before its merits are heard. It helps to see them side by side.

A wills variation claim under section 60 of the Wills, Estates and Succession Act asks whether the will made “adequate, just and equitable” provision for a spouse or child. Courts assess that through the framework the Supreme Court of Canada set in Tataryn v Tataryn Estate: first the will-maker’s legal obligations to the claimant, then the moral obligations a reasonable person in the community would recognize. The deadline is unforgiving. Section 61 requires the claim to be started within 180 days of the grant of probate, and it must then be served on the personal representative within a further 30 days. To protect claimants, section 155 bars the executor from distributing the estate within 210 days of the grant unless every beneficiary and every possible claimant consents or the court authorizes it.

A challenge to the will’s validity turns on different tests. Testamentary capacity is measured against the long-standing standard in Banks v Goodfellow: the will-maker understood that they were making a will, knew the general extent of their property, and appreciated the people who might expect to benefit, with no disorder of the mind distorting those judgments. For undue influence, section 52 of WESA can flip the usual burden. Where the challenger shows the will-maker was in a relationship where another person had the potential to dominate or where the will-maker was dependent, the person defending the will must prove it was not the product of undue influence. Validity and other estate claims generally fall under the two-year limitation period in the Limitation Act, and a beneficiary who wants to sue on the estate’s behalf usually needs leave of the court under section 151 of WESA. Because these tests and clocks run in parallel, the first job in any dispute is to identify which claim fits, then to file before the shortest applicable deadline closes.

The Role of Will Dispute Lawyers in BC

Will disputes can be complex and emotionally draining. The issues at stake tend to be deeply personal. Family dynamics can make such disputes extremely uncomfortable, and the idea of suing a family member or parent’s estate, for example, can be tough to swallow. To succeed, the person making the claim must have an understanding of BC estate laws, court rules, technical grounds, and applicable limitation periods.

Top Will dispute lawyers are sensitive to these issues and skilled at providing clear, effective strategies for resolving estate disputes. You don’t need to worry about figuring out deadlines, paperwork, and evidentiary requirements on your own. The lawyers at Onyx Law Group have the experience and knowledge to guide you through the will dispute process and help you navigate the complexities of BC estate laws, including the Wills, Estates and Succession Act. 

5 Steps to Dispute a Will with a Lawyer in BC

Step 1: Initial consultations and case evaluation

The recommended first step is to consult with a lawyer with estate dispute experience. During your free consultation, Onyx Law Group can review the facts and circumstances, advise you on the laws and your legal options, provide an opinion on the strength of your claim, explain the evidence you will need, ensure deadlines aren’t missed, and help prepare the best legal strategy for your case.

Step 2: Gather evidence to support your claim

The evidence you’ll need depends on the basis for the estate dispute. Documents such as medical records, statements for bank accounts, and other documents may be relevant to the dispute. For example:

• If you suspect elder abuse or undue influence, you’ll need evidence of the relationship between the deceased person and the person who unduly influenced them.

• If you’re claiming the Will is forged or fake, you’ll need expert evidence to support your case.

• If you are claiming the Will is ambiguous, you’ll need extrinsic evidence to support the proper interpretation of the Will.

Your lawyer will explain the legal test that has to be met to prove your case, help you gather proof, and conduct a close examination of the evidence gathered to ensure you put forward the strongest possible claim.  

Step 3: Start your court case

The next step is to start estate litigation proceedings in the Supreme Court of British Columbia (e.g., a Notice of Dispute to oppose the issuance of an estate grant, a wills variation claim, a claim contesting the validity of the Will). Starting the legal process preserves the limitation period and provides the estate trustee with notice of the will dispute.

Step 4: Attend mediation or alternative dispute resolution (if applicable)

Once your court case is started, there may be opportunities to negotiate to reach settlement without the need for a trial. It may be advantageous to attend mediation or try other alternative dispute resolution options.

Step 5: Proceed to trial if necessary

If settlement is not reached, the final step is to attend court to present your claim at trial. You will need to provide evidence to support your claim and cross-examine any witnesses called by the estate trustee or other persons named in the court case.

Choosing the Right Will Dispute Lawyers in BC

It’s extremely important to get legal advice before proceeding with an estate dispute. It’s also important to choose a lawyer you trust, and who you feel comfortable working with. Core qualities to look for are a practice that specializes in estate litigation, experience with will disputes, and a proven success rate.

Don’t be afraid to ask prospective lawyers about their specific experience, whether they’ve handled cases similar to yours, and what strategy they recommend in your case. You should also ask about legal fees and their fee structure (e.g., Is a retainer required? Are legal fees paid only once the case is resolved successfully?).

You should take the time to meet with prospective lawyers before making a final decision on who to hire. Meeting with lawyers gives you an opportunity to assess compatibility and get a feel for their communication style. Good communication is essential; it not only keeps you up to date on the status of your case, but it tends to reduce the intensity of interpersonal conflict within your family. Communication goes through the lawyers, instead of directly to a family member or within the family. That can go a long way to protecting you and avoiding complicated family dynamics.

Reach out to our Will Dispute Lawyers

You do not have to navigate the process alone if you are embroiled in an estate-related dispute. That will only increase your stress and may worsen the impact of the dispute on your relationship with family members. Instead, seek guidance from our Vancouver-based estate litigation lawyers. We provide trusted legal advice and clear, effective strategies for resolving will disputes. 

At Onyx Law Group, we stand with those who seek legal recourse in the form of estate litigation. In every case, we work with our clients to decide on the best options to meet their individual needs and goals. We welcome you to contact us today to schedule your FREE CONSULTATION with one of our lawyers.

We believe it’s important to know your legal rights and obligations before making any decisions. That’s why we offer 30-minute free consultations to give you the opportunity to discuss your matter with a passionate and knowledgeable lawyer who can advise you on the best steps forward.

If a will dispute does not go your way, our BC estate appeal lawyers can review the judge’s reasons and advise whether there are grounds to appeal.