To contest a will in British Columbia you generally either challenge its validity, on grounds such as lack of capacity or undue influence, or bring a wills variation claim as a spouse or child who was not adequately provided for. Both routes run through the Supreme Court, and a wills variation claim has a strict 180-day deadline from the grant of probate.
There are many reasons to contest a will in BC. You may suspect the will does not represent the true wishes of your deceased loved one due to undue influence, fraud, or lack of mental capacity. You may want to vary your loved one’s will because you’ve been treated unfairly, didn’t receive the inheritance you expected, or have been disinherited altogether.
Contesting a will is a complex and emotional process, and the legal landscape for contesting wills is challenging to navigate. But in some situations, it’s the only way to seek justice and ensure that your loved one’s final wishes are honored.
You don’t have to go through it alone. The Vancouver estate litigation lawyers at Onyx Law Group can provide you with the trusted legal advice, guidance, and support you need. We draw on our specialized knowledge and years of experience to provide clear, effective strategies for fair resolution of estate disputes.
Whether you are thinking about challenging a will or you’re already embroiled in an will dispute, you deserve the advantage that comes with having experienced legal counsel on your side. Contact us today to arrange a free 30-minute consultation with one of our passionate estate lawyers. We’ll help you understand your legal options and devise a plan for achieving results, providing guidance at every step of the way to achieve the best possible outcome.
When Can You Contest a Will in BC?
It’s important to understand that only certain people have the right to contest a will, and that there are limited permissible grounds for will challenges in British Columbia. You may have suspicions or feel like you didn’t get the inheritance you expected, but that may not be enough to support a will challenge. You can contest a will in BC if you’re a spouse or child who was unfairly excluded, or if the will is believed to be invalid due to issues like lack of capacity, undue influence, or improper execution.
Legal Grounds for Challenging a Will
The most common grounds for contesting the validity of a will in British Columbia include:
- Lack of testamentary capacity: the will maker lacked the necessary mental capacity when they made the will.
- Undue influence: another person exerted undue influence or pressured the will maker to the extent that the will does not reflect their true wishes (e.g., elder abuse, caregiver abuse, or coercion by family members).
- Improper execution: the will is invalid because it was not properly executed.
- Fraud or forgery: you can challenge the validity of a document, such as a document alleged to be a handwritten will, on the basis that it is a fake or forgery.
If your will challenge is successful, the will or parts of the will are declared invalid. The will maker’s next most recent valid will is given effect and governs how the estate is distributed. If there is no previous will, the rules of intestacy determine how the estate must be distributed.
Wills Variation Claims
It’s also possible to challenge the fairness of a will by bringing a wills variation claim. In British Columbia, wills variation claims are court proceedings brought under the Wills, Estates and Succession Act to address unjustified disinheritance or unfair distribution of a deceased person’s estate.
The court deciding a wills variation claim will consider whether the inheritance in the will meets the deceased person’s legal obligation and/or moral obligation to the person seeking to vary the will (the claimant). The court must weigh competing claims of other beneficiaries before determining if the will should be varied. When a wills variation claim is successful, the court imposes an alternative distribution of the estate assets to make adequate provision for the claimant.
Who Can Challenge a Will
Parties who can contest the validity of a will on specific grounds—lack of mental capacity, undue influence, fraud, etc.—include:
- the deceased’s spouse (common law spouses and legally married spouses)
- the deceased’s children (biological and adopted)
- a beneficiary named in the will
- a beneficiary named in a previous will
Individuals who would inherit under intestacy laws if the will were deemed invalid can also contest a will, as can certain others who have a legal, financial, or beneficial interest in the estate.
The right to bring a wills variation claim is more limited. Only spouses and children of a deceased person have the right to bring court proceedings to address unfairness in a will. In this context, spouse includes married spouses and common law spouses, and children includes biological and adopted children. Stepchildren do not have the right to bring wills variation claims in British Columbia if they feel they didn’t get their fair share from a stepparent.
The Process of Contesting a Will in BC
The right steps must be taken to be sure your rights are protected while contesting a will in BC. There are also critical time limits, so it’s important to act promptly. The legal process requires you to take the following action:
Gather Evidence to Support Your Claim
A high level of preparation and strong, credible evidence are the keys to securing the best possible outcome. You’ll need to collect relevant documents such as the original will, any prior versions of the will, and other legal paperwork.
Beyond that, the evidence you’ll need depends on the grounds for contesting the will. Documents such as medical records or bank account statements may be needed to support your case. Witness testimony may also be needed (for example, evidence from family members about their independent observations with respect to the conduct of the deceased or key events; evidence from independent expert witnesses).
File a Notice of Claim with the Court
After you’ve gathered evidence to support your case, the next step is to start estate litigation 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 court proceedings preserves the limitation period and provides the estate trustee—also known as the executor of the estate—and other parties with notice of the dispute.
It’s extremely important to use the correct court forms, fill them out accurately, and file them with all necessary supporting paperwork and evidence. You’ll also need to pay court filing fees and any costs to serve court documents on the parties involved in the case.
Negotiate or Proceed to Court
Once the court proceedings have been started, there are opportunities to negotiate with the other parties to reach an out-of-court settlement. It may be to your advantage to explore mediation, arbitration, or other alternative dispute resolution options.
If settlement out of court can’t be reached, the final step is to present your case at trial. This will be hard work. You’ll need to provide legal arguments and evidence to support your claim and cross-examine any witnesses called by the estate trustee or other parties named in the court case.
How a Lawyer Can Help in Contesting a Will in BC
You just read an overview of the general steps you’ll need to take in the legal process, but the reality is that the best first step is to consult with a lawyer who has estate litigation expertise. Here are the ways that a lawyer with a specialized estate litigation practice can help you:
Evaluate Grounds for Contesting the Will
An estate litigation lawyer at Onyx Law Group in Vancouver can review the facts and circumstances, advise you on the laws and your legal options, verify that you have legal standing to bring court proceedings, and provide you with an opinion on the strength of your claim.
Gather and Organize Crucial Evidence
Your lawyer will explain the legal test and legal burden that must be met to win your case. They’ll identify key evidence needed to prove your claim and then assist in collecting, organizing, and preserving the documents, testimony, and expert evidence to put forward the strongest possible case.
File Legal Claims and Documents
The Supreme Court of British Columbia has strict rules and procedures that must be followed and specific forms that must be used. The court will reject documents that aren’t completed, filed, and served in accordance with the rules.
When you work with a Vancouver lawyer who has expertise in estate litigation, they will ensure all documents are correctly filed on time, and in compliance with all of BC’s legal requirements.
Negotiate Settlements to Avoid Court
Starting estate litigation doesn’t necessarily mean having a trial. The Vancouver lawyers at Onyx Law Group strive to resolve disputes through negotiation or other alternative dispute resolution methods, so their clients avoid lengthy and costly court proceedings whenever possible. We can explore alternative dispute resolution options with you, using mediation, arbitration, or other processes to achieve the most favourable result in your case with the least expense.
Court Representation in BC Will Disputes
If out-of-court settlement is not possible, your Vancouver estate litigation lawyer will take the case to trial, representing you with skill and presenting your case in a clear, convincing manner.
Why Choose Onyx Law Group For Will Contesting in BC
Estate disputes tend to be emotionally charged. In some cases, disagreements over a loved one’s estate can tear family members apart and cause lasting family feuds. The experienced estate litigation lawyers at Onyx Law Group in Vancouver are sensitive to these issues and strive to resolve disputes as smoothly and peacefully as possible for our clients, without delay or unnecessary costs.
Clients choose us because we specialize in resolving disputes concerning wills, estates, and trusts. We have well-developed expertise and deep familiarity with British Columbia estate laws and court procedures. Our estate litigation team has a strong track record with proven results representing clients in estate disputes, and we offer flexible fee options including contingency-based billing in some cases (you don’t pay unless we win).
How Long Do You Have to Contest a Will in BC?
As noted above, there are strict deadlines that must be met if you want to vary or challenge a will. The deadline (“limitation period”) depends on the type of claim you’re bringing. If you want to contest the validity of a will, you must challenge the will within two years of the date you knew or ought to have known of the grounds for the claim.
The limitation period is different if you’re the spouse or child of the will maker applying to vary the will because you weren’t provided with an adequate, just, or equitable inheritance. In that situation, you must start your legal action within 180 days of the date the Supreme Court issues a grant of probate.
If you miss the applicable limitation period, you may lose the right to challenge the will. The best course of action is to seek legal advice from an estate litigation lawyer at our Vancouver law firm as soon as possible to ensure deadlines aren’t missed.
How Much Does It Cost to Challenge a Will in BC?
Before you initiate any legal action to contest a will, you need to be aware of what it will cost so you can consider your financial position and budget accordingly. On average, experienced lawyers typically charge $200 to $500 per hour to assist with will challenges.
However, each estate is unique. You should expect the legal costs to vary depending on factors that include the complexity of the case, how long the case takes to resolve, lawyer’s fees, court filing fees and other expenses such as the potential cost of hiring experts (e.g. medical professionals to testify on mental capacity; handwriting expert to testify on forgery).
If you think you want to contest a will in BC, we welcome you to reach out to our Vancouver estate litigation lawyers to discuss anticipated costs.
Talk to a BC Estate Litigation Lawyer
We know will disputes are emotional—we’re here to help you navigate your claim confidently.
Onyx Law Group has the experience and knowledge to help you. When it comes to estate litigation, our Vancouver estate litigation team is empathetic, creative, and focused on getting the results you want.
We offer a 30-minute free consultation to give you the opportunity to discuss your matter with a passionate and knowledgeable lawyer who can advise you on the best steps forward.
You have nothing to lose and so much to gain. Contact our team of experienced British Columbia estate litigation lawyers today.
Frequently Asked Questions
The answers below give general information about British Columbia law. They are not legal advice. For guidance on your own situation, speak with a lawyer.
On what grounds can I contest a will in BC?
There are two main routes. You can challenge the will's validity, arguing it should not stand at all because the will-maker lacked capacity, was unduly influenced, did not know or approve its contents, or the document was not signed and witnessed as WESA requires. Or, as a spouse or child, you can bring a wills variation claim under section 60 of WESA arguing the valid will fails to make adequate provision for you. The right approach depends on your relationship to the deceased and the facts.
Who is allowed to contest a will?
For a wills variation claim, only the deceased's spouse or children can apply under section 60 of WESA, and spouse includes a married partner or someone in a marriage-like relationship of at least two years. A validity challenge can be brought by a wider group, such as someone who would inherit under an earlier will or on an intestacy, because they have a direct interest in setting the will aside. Whether you have standing depends on which challenge you are making. A lawyer can confirm where you stand.
What is the deadline to contest a will?
For a wills variation claim, section 61 of WESA sets a strict deadline: the claim must be started within 180 days of the grant of probate and served on the executor within 30 days after that period, unless the court extends the time. A challenge to a will's validity is generally governed by the two-year basic limitation period, though the timing can be more complicated. Because these limits are firm, it is best to seek advice as soon as a concern arises. Acting early preserves your options.
How do I prove the will-maker lacked capacity?
Testamentary capacity is measured by the test in Banks v Goodfellow: whether the will-maker understood they were making a will, knew the general nature and extent of their property, and appreciated who might reasonably expect to benefit. Evidence usually comes from medical records, the lawyer or notary who prepared the will, and people who knew the person around the time it was signed. A diagnosis alone does not prove incapacity; the focus is on understanding at the moment of signing. Building this evidence early is important.
What is undue influence in a will challenge?
Undue influence means the will-maker was pressured or coerced so that the will reflects someone else's wishes rather than their own free choice. Under section 52 of WESA, where someone was in a position of dominance over a dependent will-maker, the person who benefits may have to show the gift was not obtained by undue influence. Signs include isolation of the will-maker, secrecy around the will, and a sudden change favouring a caregiver or new acquaintance. These claims depend heavily on the surrounding circumstances.
What does it mean if a will-maker did not know or approve the will?
A valid will requires that the will-maker knew and approved its contents. This ground can arise where the person was blind, illiterate, signing in a language they did not read well, or where suspicious circumstances surround the preparation of the will. If those circumstances exist, the person putting forward the will may have to prove the will-maker truly understood and approved what it said. It is a separate ground from capacity and undue influence, though the facts often overlap.
How much does it cost to contest a will?
Costs vary widely with the complexity of the case and whether it settles or goes to trial. The old assumption that the estate pays everyone's legal costs no longer holds in BC, and an unsuccessful party can be ordered to pay a portion of the other side's costs. Some cases resolve early through negotiation or mediation, which keeps costs down, while a full trial is far more expensive. A frank assessment of the merits and likely cost at the outset helps you decide whether to proceed.
What happens if my challenge to a will succeeds?
The outcome depends on the type of challenge. If a will is found invalid, an earlier valid will takes effect, or the estate is distributed under the intestacy rules in Part 3 of WESA. If a wills variation claim succeeds, the court keeps the will but changes the distribution to give you a share it considers adequate, just, and equitable. Many disputes settle before trial on negotiated terms. Understanding the realistic range of outcomes early helps guide your decisions.
Where a contested-will decision does not go your way, our family and estate appeal lawyers handle appeals to the BC Court of Appeal.
Onyx Law Group represents clients in family law throughout British Columbia, estate and trust litigation, estate planning and probate matters. Consult with our experienced BC team at
(604) 900-2538