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Can Someone Contest a Will If They Are Not in It?


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Coping with the death of a family member gets even more difficult if you find out that you were disinherited or did not receive the inheritance you expected. When the initial anger, shock, and disappointment of being left out of a will begins to subside, you may start to wonder if there is anything you can do to fix the situation.

In British Columbia, there are several ways to contest a will to seek justice. Contesting a will can be a difficult and emotional process, and only certain people have the right to contest a will (known as “legal standing”). You may have legal standing to contest a will, even if you aren’t named in it.

But you don’t have to go through the process alone. Seek legal advice and guidance from Onyx Law Group if you find yourself in a will dispute. Our estate litigation and probate lawyers provide trusted advice and clear, effective strategies for dispute resolution. Contact our law firm today for a free initial consultation.

In today’s post, we will look at circumstances where a person can contest a will that doesn’t name them and the legal process for starting will contests.

Understanding the Purpose of a Will

Understanding the Purpose of a Will

A will is a legal document that leaves instructions about what a person wants done with their estate after they die. A person’s estate is made up of the property and assets they owned at the time of their death, such as bank accounts, personal possessions, real estate, and investments.

According to BC Inheritance and Estate Laws, there are certain legal requirements to make a valid will: to be valid, a will must be (1) in writing, (2) signed at the end by the will-maker, and (3) signed in the presence of two independent witnesses. If a will doesn’t meet those requirements, it may not be enforceable.

Who Is a Legal Beneficiary of a Will?

A beneficiary is a person or organization named in a will to receive all or part of an estate. A person with a beneficial interest in a trust created by a will is also a legal beneficiary (for example, a trust created in a will for the benefit of minor children or a disabled child of the deceased).

If a person dies without a will, the question of who their legal beneficiaries or “heirs-at-law” are is answered by the rules of intestacy set out in the Wills, Estate and Succession Act. Distribution of the estate will depend on the value of the deceased’s estate and the combination of relatives the deceased leaves behind. For example, if a married person with children dies without a will, the rules state that their surviving spouse is the beneficiary of a preferential share of the deceased’s estate, with the deceased’s biological children being beneficiaries of what remains after the preferential share goes to the surviving spouse.

Can Someone Contest a Will If They Are Not in It?

Can Someone Contest a Will If They Are Not in It?

Yes, in certain circumstances, a person can contest a will that doesn’t name them. Who can contest a will in Canada and the legal standing to contest a will depends on the type of claim you want to bring, how you were related to the deceased person, and whether you have an interest in the estate.

For example, to bring legal action challenging the will’s validity on the grounds of lack of mental capacity or the other reasons set out above, you must have an interest in the estate. Furthermore, if you aren’t named as a beneficiary in the most recent will, you would be eligible to contest the will if you are a beneficiary named in a previous will or you are an heir who would inherit under the rules of intestacy if the will is deemed invalid.

Legal standing to bring a wills variation claim is more limited. Only the spouse or child of the deceased can bring a claim to vary the distribution of the estate in an otherwise valid will. “Spouse” here means a legally married spouse and a common-law spouse (a person living in a marriage-like relationship with the deceased person before their death). “Child” means biological child and includes adopted children of the deceased. Even adult children of a deceased person can apply to vary their parent’s will. The stepchild of a deceased person does not have legal standing to bring a wills variation claim.

Enforcing Promises Made by the Deceased That Are Not Reflected in the Will

People with a financial interest in the estate may also have legal standing to contest the will (e.g., a person to whom the estate owes a debt). In addition, a person who was promised an inheritance that is not reflected in the will may have grounds to bring legal action to enforce that promise.

A “resulting trust” claim can be brought to enforce an unfulfilled promise to give a piece of property to another (Cowper-Smith v. Morgan, 2017 SCC 61 is a case in which a brother successfully sued to enforce his sister’s promise to give him her share of their mother’s house if he moved back in with their aging mother to care for her).

A “constructive trust” claim can also be brought to remedy unjust enrichment. For example, if a person contributed their time and/or money to benefit another person’s property, they may be able to claim that they are entitled to some or all of that property. The court can impose a constructive trust over the property in question to remedy the unfairness.

Reasons Non-Beneficiaries Might Contest a Will

Reasons Non-Beneficiaries Might Contest a Will

The grounds for contesting a will in British Columbia are limited. Here are the most common reasons a person not named in a will may use to contest it:

  1. Mental Incapacity. You may be able to ask the Court to set aside a will if it was signed by a will-maker who didn’t have the mental capacity to make a will. Medical records are relevant here, but the test for testamentary capacity is a legal test, not a medical test.
  2. Undue Influence or Coercion. You may be able to ask the Court to set aside a will that was made because someone unduly influenced the will-maker. To prove undue influence, you will need evidence; for example, evidence of threats or pressure from a relative or caretaker to the degree that the will does not reflect the will-maker’s true intentions.
  3. Improper Execution of the Will. As discussed before, for a will to be valid, it must meet the formal requirements set out in s. 37 of the Wills, Estates and Succession Act. You can ask the probate court to invalidate a will if it was not executed properly.
  4. Unfairness in the Will. Certain people can ask the court to vary a will in their favour if they were disinherited. This is known as a “wills variation claim” and it is provided for in Wills, Estates and Succession Act, s. 60. The court will consider whether the will meets the will-maker’s legal obligation to provide proper maintenance and/or the will-maker’s moral obligation to the claimant, weigh competing moral claims of other beneficiaries, and consider other factors including the financial circumstances of the parties. If the court finds unfairness, it will vary the will in the claimant’s favour so they get their fair share of the estate assets.

If you bring a successful challenge using options 1, 2, or 3, the will is not enforceable. Instead, the will-maker’s prior will (if a valid prior will exists) is given effect. This can be extremely helpful to those who were named as a beneficiary in previous wills but excluded by a more recent will due to undue influence, fraud, etc. If the will-maker did not have a previous will, the rules of intestacy must be applied to determine who inherits and in what amount.

If you are successful in using option 4 (wills variation claim), the will is still considered valid, but the court alters the distribution of the estate assets to make adequate provision for the claimant, based on what a reasonable will-maker would do in light of their legal obligations and moral obligations to the claimant and other beneficiaries named in the will.

The Process of Contesting a Will – for Non Beneficiaries

The Process of Contesting a Will - for Non Beneficiaries

Wills contests are won by claimants who have proper legal standing, a valid legal claim, and sufficient evidence to support their case. Steps in the legal process typically include:

  • gathering evidence,
  • filing documents with the probate registry to start the legal action,
  • attending mediation or using other forms of alternative dispute resolution to reach a settlement,
  • proceeding to trial if an out-of-court resolution is not possible.

The best first step is to consult with a lawyer who is experienced in contesting wills and who understands the probate process. The probate lawyers at Onyx Law Group can advise you on how to know if you can dispute a will and win, give insight into the strength of your claim, explain the evidence you will need, ensure deadlines aren’t missed, and help you prepare the best legal strategy for your case.

Challenges and Considerations for Non Beneficiaries

Challenges and Considerations for Non Beneficiaries

One of the main challenges is that Wills contests can give rise to significant financial and emotional costs. It’s important to consider what you hope to achieve and the potential outcomes before contesting a will.

For example, if a will challenge on the basis of undue influence is successful, the will is deemed invalid by the court. The will-maker’s next most recent valid will governs how the estate is distributed. If there is no prior will, the rules of intestacy determine how the estate must be distributed. As such, you must carefully consider whether you will be “better off” if a previous will or the rules of intestacy are given effect.

Limitation periods can also pose a challenge. There are strict deadlines that must be met to bring legal action. The deadline depends on the type of claim you are bringing. For instance, a two-year limitation period applies if you are contesting a will on the grounds of mental incapacity or undue influence. The limitation period is different if you’re the surviving spouse or child of the will-maker applying to vary the will in your favour. In that situation, you must start your legal action within 180 days of the date the British Columbia Supreme Court issues a grant of probate.

Another important consideration is the cost. The average cost to contest a will in British Columbia varies based on factors such as the type of legal representation you choose, the number of legal issues, the number of parties to the dispute, and the complexity of the case. If you would like to discuss your unique situation and get a realistic estimate of the specific costs involved in contesting a will, contact Onyx Law Group today.

Alternatives to Contesting a Will

Legal action is one way to resolve an estate dispute, but it isn’t the only way. Some estate disputes can be resolved informally among beneficiaries and executors, especially if they have an experienced lawyer advising them on their rights and the law. Mediation, arbitration, and other alternative dispute resolution techniques can be very useful for resolving estate disputes. As an added benefit, non-litigious alternatives tend to be less costly, quicker, and better at preserving family relationships.  

Do You Want To Know if You Can Contest a Will if You Are Not in It?

Wills contests can be challenging, which is why it’s advisable to work with a lawyer who has the experience and knowledge to help you get the results you want. If you’ve been left out of a will or did not receive a promised inheritance, reach out to Onyx Law Group at (604) 265-9914 to discuss your legal options.

At Onyx Law Group, we choose to be a place of support for our clients while providing competent and passionate legal advocacy. Our experienced estate and probate lawyers seek equitable solutions for you, and we stand by you throughout the process. Reach out to us today for a free consultation. We can help you understand the law, your chances of success, and the evidence you’ll need to win.

Have questions about a topic?

Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
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