A Last Will and Testament is made so that the instructions and wishes of the will-maker are followed after their death. What happens when surviving family members or other beneficiaries dispute the will or question whether the will is legally valid?
A will can be challenged after the will-maker has died—but legal action is only open to certain people, and the legal grounds for contesting a will in British Columbia are limited.
Challenging a will can be an emotionally draining process and you should seek legal advice if you want to go through with it. Don’t hesitate to reach out to Onyx Law Group for legal representation and support. Our wills and estates lawyers have the experience and knowledge necessary to explore your options, mount a successful challenge, and maximize settlement value. Contact us today for a consultation and let us help you win your case.
In today’s article, we’ll explore how to challenge a will, including information about the legal grounds, legal standing, and legal process. We’ll also have a look at possible outcomes of a will challenge and steps a will-maker can take to prevent—or at least lessen the possibility of—a will dispute.
What Does Challenging a Will Mean?
Challenging a will means bringing court proceedings to formally object to the validity of a will. Essentially, the claim is that the will does not reflect the true intention of the will-maker. The burden of proving that the will should be deemed invalid rests with the person who challenges the will.
What Type of Will Can Not Be Challenged?
While there are preventative steps that can be taken to avoid a will dispute, there is no such thing as a will that can’t be challenged. No-contest clauses are sometimes used; these clauses generally state that if a beneficiary unsuccessfully challenges the will, they are disinherited. British Columbia courts have not enforced no-contest clauses.
Importance of Having a Will
A person’s estate is everything they own at the time of their death. A Last Will and Testament is a legal document that solidifies that person’s wishes regarding the distribution of their estate.
A will-maker can achieve a number of things in a well-drafted will, including providing instructions for who inherits estate assets and when. The will-maker also gets to choose the estate trustee to carry out the instructions in the will.
If a person dies without a will, they are said to have “died intestate.” In that situation, estate assets must be distributed in accordance with the rules of intestacy, and a family member will need to apply to the court to get the authority to handle the estate.
What Are the Grounds for Challenging a Will?
There are important formalities and legal requirements that must be met for a will to be legally valid in British Columbia. Failure to meet those formalities and requirements provides a reason to start legal action. Let’s have a look at the specific grounds for challenging a will.
Lack of Testamentary Capacity
Challenging a will on the grounds of lack of testamentary capacity involves arguing that the person who made the will was not of sound mind (in other words, that they did not have the mental capacity to understand the nature and implications of the will at the time it was made).
While there is no one sign that a will-maker lacks mental capacity, there are some red flags to watch out for, including memory loss, confusion, difficulty communicating, delusions or erratic/irrational behavior, use of drugs or alcohol, and late-in-life will changes made on a rush basis. A new will that departs significantly from the person’s prior will may also be a red flag.
Undue Influence
Undue influence involves situations where a person uses power over another person to his or her own benefit. For example, a caretaker may use threats or other abusive tactics to convince an elderly person to change his or her estate plan in the caretaker’s favour.
To invalidate a will on the grounds of undue influence, the party challenging the will must provide evidence to support the allegation. They must prove that someone exerted undue influence over the person making the will to the extent that the will does not reflect the will-maker’s true intentions.
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 (a.k.a. holographic wills).
Signs of potential fraud or forgery include missing pages or substituted pages, changes or alterations to the will that weren’t properly signed or witnessed, suspicious-looking signatures, and other fraudulent activities.
Failure to Meet Legal Formalities
For a will to be valid, it 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 independent witnesses who also sign the will. A will can be invalidated if it was not properly executed and witnessed.
Who Can Challenge a Will?
The legal grounds for challenging the validity of a will are not open to just anyone. Only certain people are entitled to bring legal action (known as having “legal standing”). A person must have an interest in the estate to have legal standing. Examples include a beneficiary named in the most recent will, a beneficiary named in a previous will, or an heir who would inherit under the rules of intestacy if the will is deemed invalid. People with a financial interest in the estate may also have legal standing (e.g., a person to whom the estate owes a debt).
What if the Will Is Unfair?
British Columbia law protects the principle of “testamentary freedom,” which is a person’s right to deal with their estate assets as they see fit. So, if a will is legally valid, it should be given effect. There is an exception: s. 60 of WESA allows a person to ask the court to vary the terms of the deceased’s will on the basis that they were unjustly disinherited or didn’t receive adequate provision in all the circumstances. This is known as a wills variation claim.
Only the spouse or child of the will-maker can bring a wills variation claim in relation to an otherwise valid will. “Spouse” here includes a legally married spouse and a common law spouse. “Child” means biological child or adopted child of the deceased but does not include a deceased person’s stepchild. Minor children and adult children of the deceased are entitled to dispute the fairness of the will.
If the court agrees that the will failed to make adequate provision or unfairly disinherited the surviving spouse or child of the deceased, the court will impose an alternative distribution of the estate assets that meets the deceased’s legal obligation and/or moral obligation. That is quite different compared to the outcome of a will challenge (see below for more on possible outcomes of challenging a will’s validity).
The Process of Challenging a Will
Challenging a will in BC can be an emotionally draining process. It is also a complex legal process that requires knowledge of legal principles, court rules, legal forms, and applicable time limits. Here is a quick overview of the legal process.
Hire an Estate Litigation Attorney
The best first step is to consult with a lawyer with experience contesting wills. The lawyer can provide a legal opinion on the strength of the claim, explain the necessary evidence, ensure deadlines aren’t missed, and help prepare the best legal strategy for the case.
Review the Will and Gather Evidence
The evidence depends on the grounds for the legal challenge to the will. Documents such as medical records, statements for bank accounts, and other documents may be relevant. If the claim is based on undue influence, evidence of the relationship between the person who unduly influenced the deceased and the deceased will be required. If the claim is that the will is forged or fake, expert evidence will be needed to support the case.
File the Claim
The next step is to start legal proceedings in the Supreme Court of British Columbia. Starting the legal process preserves the limitation period and provides the estate trustee with notice that the will is being contested. Notice must be given to certain other people (e.g., other beneficiaries or people with an interest in the estate), so they have the opportunity to participate.
Court Proceedings
After legal proceedings have been started, there may be opportunities to negotiate settlement without the need for a trial. It may be advantageous to attend mediation or try other alternative dispute resolution options. An experienced estate lawyer can help explore and implement alternative options.
If settlement is not reached, the final step is to attend court to present the case at trial, providing evidence to support the claim, cross-examining any witnesses, and making legal arguments. Strong legal representation at trial is highly recommended.
Possible Outcomes of Challenging a Will
There are two outcomes to challenging a will – the will would be upheld, or the will can be partially or fully invalidated!
Will Is Upheld
If the challenge is unsuccessful, the will is upheld and can proceed through the probate process. The court may order you to bear your own costs, or order you to pay another party’s costs if your case is unsuccessful or frivolous.
Will Is Partially or Fully Invalidated
When a will challenge succeeds, the court has the power to invalidate, modify, or interpret the will. If the entire will is deemed invalid, it is set aside and not given effect. The will maker’s next most recent valid will takes its place. If the deceased person had no other valid will, his or her estate must be distributed according to the rules of intestacy, which are referenced above.
If only part of the will is deemed invalid, the remaining parts are given effect. If there is no other valid will, it’s treated as a partial intestacy. The rules of intestacy apply only to the estate assets not dealt with by the will.
Can You Contest a Will After Probate?
A will can be challenged before or after the probate process has started. Many challenges start after the will has entered probate. If the will has not already entered probate, a Notice of Objection is filed with the court to prevent probate until the dispute has been addressed.
If the will has already entered probate, a motion for the return of the Certificate of Appointment of estate trustee will be necessary. In either situation, the best course of action is to talk to a lawyer immediately to ensure deadlines aren’t missed.
What Is the Cost of Contesting a Will?
Estate litigation can be costly. Each will challenge is unique, and the legal costs depend on several factors. The type of legal representation, the number of legal issues, and the number of parties to the dispute will impact the bottom line, but the complexity of the case is usually the top factor that affects the legal costs of a will challenge.
How to Prevent Someone from Challenging a Will?
There are steps a will-maker can take to prevent later challenges. Working with an experienced estate planning lawyer is an excellent way to avoid future disputes. The lawyer can provide clear advice, highlight risks, document intentions and reasons for choices made in the will, and ensure formalities are met.
The lawyer can also take steps if testamentary capacity or undue influence are potential issues (e.g., precautions such as video documentation, medical evaluation, meeting with the will-maker separately to confirm instructions). The lawyer can also help explore other options such as trusts, inter vivos gifts, and property transfers that can be done during a person’s lifetime.
For example, you may wish to establish a living trust. You transfer assets into the trust during your lifetime, with the trust deed instructing how the trust assets are to be managed and distributed during your lifetime and after your death. Trusts offer many advantages, chief of which for these purposes is that they are not subject to the probate process.
Transparent communication with family members or other beneficiaries is also a great step to avoid having a will challenged. It’s wise to speak to heirs about your estate plan and what is in your will and why so there are no surprises.
Need Legal Help With an Estate Matter?
Onyx Law Group has the experience and knowledge to help you. When it comes to challenging a will, we are empathetic, creative, and focused on getting the results you want. Reach out to us today for a consultation and get started on the litigation process.
We choose to be a place of support for our clients while providing competent and passionate legal advocacy. Our expert wills and estates lawyers seek equitable solutions for you and we stand by you throughout the process.
Connect with us in Vancouver or New Westminster to learn more about our estate planning and estate litigation services.