Losing a loved one is difficult, and being left out of their will can make the situation even more overwhelming. Many people wonder if they can contest a will if they’re not included in it. In British Columbia, the answer is yes, as certain individuals can legally challenge a will, even if they’re not named in it.
Have you been left out of a loved one’s will and do not know what to do? Seek legal advice and guidance from Onyx Law Group if you find yourself in a will dispute. Our skilled estate litigation and probate lawyers provide compassionate guidance, trusted advice, and proven strategies within these practice areas to resolve will disputes. Contact us today for a free consultation and take the first step toward protecting your rights.
In this post, we’ll talk about how to contest a will that doesn’t include you, and how to start a will contest.
What Is 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 comprises 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 does not 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 “who can contest a will in Canada?” is answered by the rules of intestacy set out in the Wills, Estates, 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.
Who Can Contest a Will?
Not everyone is entitled to challenge a will; only those with what is known as “legal standing” are permitted to do so. Typically, this group includes close family members such as spouses, children, or others who were financially dependent on the deceased. One may also ask, “Can you contest a will if you are not named in it?” You can contest a will if you have a legal interest in the estate, even if you’re not named in it.
There are also specific ways to contest a will, such as proving a lack of testamentary capacity, demonstrating undue influence, identifying fraud, or establishing that it was not executed properly. Each ground requires strong evidence and often legal guidance to be successful. Because of the complexity of these cases, it’s important to seek advice from an experienced estate lawyer who can determine whether you have standing and the best way forward for challenging the will.
Can Someone Contest a Will if They Are Not in It?
Can you contest a will if you were left out? Yes, in certain circumstances, a person can contest a will that doesn’t name them. But before that, it’s also important to know who can contest a will in Canada? 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.
To bring legal action challenging the will’s validity on the grounds of lack of mental capacity or other reasons mentioned above, a person must have an interest in the estate. If you are not named as a beneficiary in the most recent will, you may still contest it if you were a beneficiary in a previous will or if you are an heir entitled to inherit under intestacy laws, provided the will is declared invalid.
The legal standing required to bring a will 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. The term ‘spouse’ refers to both legally married and common-law spouses, defined as individuals who lived in a marriage-like relationship with the deceased in their final days.
“Child” means biological child and includes adopted children of the deceased. The adult children of a deceased person can apply to vary their parents will. The stepchild of a deceased person does not have legal standing to bring a will variation claim.
How Can Promises Outside the Will Be Enforced?
Someone 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 promised an inheritance not reflected in the will may have justification 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 made 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 it. The court can impose a constructive trust over the property in question to remedy the unfairness.
What Are the Reasons Non-Beneficiaries Might Contest a Will?
The reasons for contesting a will in BC are limited. Here are the most common reasons a person not named in a will may use to contest it:
- 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 one. Medical records are relevant here, but the test for testamentary capacity is legal, not a medical one.
- Undue influence or coercion may also be considered. You may be able to ask the court to set aside a will if it was created under undue influence from someone. To prove undue influence, you will need evidence, such as threats or pressure from a relative or caretaker, that demonstrates the will does not reflect the true intentions of the will-maker.
- The will was executed improperly. As discussed before, for a will to be legally binding, it must meet the formal requirements set out in S. 37 of the Wills, Estates, and Successions Act. You can ask the probate court to invalidate a will if it has not been executed properly.
- Unfairness in the Will. Certain people can ask the court to vary a will in their favor if they were disinherited. This is known as a “wills variation claim,” and it is provided for in the Wills, Estates and Succession Act, s. 60.The court considers whether the will meets the will-maker’s legal obligation to provide proper maintenance and the will-maker’s moral obligation to the claimant, weighs competing moral claims of other beneficiaries, and considers other factors, including the financial circumstances of the parties. If the court finds unfairness, it will modify the will to benefit the claimant, ensuring they receive 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 legitimate prior will exists) is given effect. This can be extremely helpful for individuals who were named as beneficiaries in earlier wills but have been excluded from a more recent will due to reasons such as undue influence or fraud. If the will-maker had no prior will, intestacy rules decide who inherits and how much.
If you successfully use option 4 (will variation claim), the will remains enforceable; however, the court will alter the distribution of the estate assets to ensure adequate provision for the claimant, reflecting what a reasonable will-maker would do considering their legal and moral obligations to both the claimant and any additional beneficiaries named in the will.
The Process of Contesting a Will for Non-Beneficiaries
Will contests are won by claimants who have proper legal standing, a valid legal claim, and sufficient evidence to support their case. The steps in the legal procedure of a will variation claim can help increase your odds of winning a will contest. They typically include:
- Gathering evidence,
- Filing documents with the probate registry to start the legal action,
- Attending mediation or utilizing other forms of alternative dispute resolution can help settle.
- Proceeding to trial if an out-of-court resolution is not possible.
The best first step is to consult a lawyer who is experienced in contesting wills and who understands the probate process. The experienced lawyers at Onyx Law Group can advise you on how to know if you can dispute a will and win, offer commentary on 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
Can someone not named in a will contest it? One of the main challenges is that a will contest 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 instance, if a challenge to a will based on undue influence is successful, the court will declare the will invalid. The will-maker’s next, most recent, valid will governs how the estate is distributed. When there are no previous wills, the rules of intestacy determine how the estate must be distributed. Therefore, you must carefully consider whether you will be “better off” if a former will or the rules of intestacy take 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 submitting. For instance, a two-year limitation period applies if you are contesting a will based on mental incapacity or undue influence.
The limitation period is different if you’re the deceased spouse or child of the will-maker applying to vary the will in your favor. 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 of contesting a will in British Columbia varies based on the type of law firm you choose and the number of legal issues. It also depends on the number of parties to the will dispute and the complexity of the case. If you would like to discuss your unique situation and get a realistic estimate of the legal fees 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 between 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 methods can be very effective in 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?
Being excluded from a loved one’s will can be shocking and unfair; however, in many cases, it is still possible to challenge the document. Can a non-beneficiary contest a will? While not everyone is entitled to do so, certain individuals, such as spouses, children, or financial dependents, may have legal standing to bring a claim even if they are not named as beneficiaries.
There are several ways to contest a will, including claims of undue influence, lack of mental competence, fraud, or failure to meet legal requirements. Because the process can be complex and emotionally challenging, seeking advice from an experienced estate lawyer is the best step to determine your rights and the strength of your case.
Can a family member contest a will if they are not in it? Our team at Onyx Law Group prioritizes providing our clients with competent and passionate legal advocacy. Our experienced estate and probate lawyers seek equitable solutions for you, and we stand by you throughout the process. Contact us today for a complimentary consultation. We can help you understand the law, your chances of success, and the evidence you’ll need to win.
Frequently Asked Questions
If a loved one excludes you from their will, you may wonder if you can contest it. Below are answers to common questions about contesting a will if you are not included as a beneficiary.
Can a Sibling Contest a Will if They Are Left Out?
Yes, a sibling can contest a will if they believe there are valid legal reasons, such as undue influence, lack of capacity, or improper execution. However, merely being excluded from the will is insufficient by itself to successfully challenge it.
What Kind of Will Cannot Be Contested?
No will is completely immune from being contested, since anyone with legal standing can file a challenge. However, a properly drafted will that meets all legal requirements, is clear, and is made without undue influence or incapacity is far less likely to be overturned.
Can a Family Cut You Out of a Will?
Yes, in most cases a person is entitled to leave someone out of their will, including family members. The main exceptions are spouses or dependents, who may be entitled to a share under inheritance or family protection laws.
What Are the Grounds for Contesting a Will?
Common grounds for contesting a will include lack of testamentary capacity, undue influence, fraud, forgery, or failure to meet legal formalities, all of which can affect the odds of winning a will contest after death. Beneficiaries may also challenge a will if they believe a more recent legitimate version exists.
Can a Family Member Contest a Will if They Were Left Out?
Yes, a family member can contest a will if they were left out, but they must have sufficient legal justification, such as undue influence, fraud, or lack of capacity. Simply being excluded is not enough to overturn the will.
Can a Lawyer Help Me Contest a Will if I’m Not Mentioned in It?
Yes, a lawyer can evaluate whether you have legal standing and legitimate reasons to contest a will, even if you are not mentioned in it. They can guide you through the process, gather evidence, and represent your interests in court.
Are There Time Limits for Contesting a Will if You’re Not in It?
Yes, there are strict time limits for contesting a will, which vary depending on the jurisdiction. Missing the deadline can prevent you from pursuing a claim, regardless of the grounds.