If you are a spouse or a child who was disinherited from or only received a nominal amount from your spouse or parent’s estate, then you may be considering whether you want to contest the will.There are various ways to contest a will. Three of the most common reasons to contest a will occur when:
- the will did not provide adequate provision for the proper maintenance and support of the will-maker’s spouse or children;
- the will was made under undue influence or there were other suspicious circumstances surrounding the making of the will; or
- the will-maker did not have testamentary capacity when making the will.
Let’s review each of these scenarios in some detail.
1. Contesting a will: adequate provision for proper maintenance and support
Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) section 60 gives the court broad powers to vary the terms of the will to make provisions that are, in the court’s opinion, “adequate, just and equitable” for the “proper maintenance and support” of the will-maker’s spouse or children.
For ease of reference, WESA section 60 reads:
Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
There are no hard and fast rules on the type of provisions that are adequate for the proper maintenance and support of the will-maker’s spouse or children. As comprehensively discussed in the seminal case of Tataryn v Tataryn Estate, [1994] 2 SCR 807 (“Tataryn”), the consideration of whether the provision is adequate involves a two-step process.
First, the court must ask whether the terms in the current will provides adequate provision for the will-maker’s spouse or children. “Adequate, just and equitable” is considered in light of legal and moral obligations.
Legal obligations are the will-maker’s responsibilities during his or her lifetime. These are obligations imposed by law. For example: what would have been the will-maker’s obligations under the Divorce Act?
Moral obligations are the will-maker’s duties imposed by societal norms. Moral obligations are generally “society’s reasonable expectation of what a judicious person would do in the circumstances by reference to contemporary community standards” (Tataryn). There are no set requirements for moral obligations, and the Supreme Court of Canada has noted that moral obligations are susceptible of being viewed differently by people. However, case law has established some general principles:
- If the size of the estate permits, then there is a moral obligation to provide for the spouse;
- There may be a stronger moral obligation to provide for a spouse, in light of the length of the relationship, contribution by the spouse, and whether the surviving spouse was dependent on the will-maker;
- There is a strong moral obligation to provide for minor children;
- There may be a moral obligation to provide for independent adult children, see: Parent’s Moral Obligation to Include Adult Child in a Will; and
- There is a moral obligation to provide for dependent adult children.
Second, if the court concludes that the current will does not provide adequate provision for the will-maker’s spouse or children, then the court must consider a distribution which would be adequate in light of the factors considered in step one.
2. Contesting a will: undue influence or suspicious circumstances
Generally, there is a presumption that the will-maker had the requisite capacity to make the will, however, the presumption can be rebutted with evidence showing there were suspicious circumstances surrounding the making of the will, or evidence showing the will-maker was unduly influenced by another individual.
Historically, the person contesting a will has the onus of bringing forth evidence showing the will-maker was actually influenced by another person. This created a heavy evidentiary burden on the person contesting a will.
WESA section 52 has since established a presumption that the will-maker was unduly influenced if the person contesting the will can show that a third party was “in a position where the potential for dependence or domination of the will-maker was present”:
In a proceeding, if a person claims that a will or any provision of it resulted from another person
(a) being in a position where the potential for dependence or domination of the will-maker was present, and
(b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,
and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.
For more on the presumption of undue influence, see: A Presumption of Undue Influence Where One Party can Dominate Another.
The stronger the evidence rebutting the presumption that the will-maker had the capacity to make the will, the heavier the burden for the propounder of the will to establish the will was not procured by undue influence or under suspicious circumstances.
For more information, see also: Dementia, Undue Influence and Testamentary Capacity.
3. Contesting a will: lack of testamentary capacity
Another common ground for contesting a will is if the will-maker made the will while lacking the requisite testamentary capacity. Generally, testamentary capacity is a low threshold. As outlined in Banks v Goodfellow, a will-maker must:
a. understand the nature of the act and its effect;
b. understand the extent of the property of which he is disposing; and
c. comprehend and appreciate the claims of those around him, to which he should be giving effect.
It is presumed that the will-maker had the requisite testamentary capacity to make the will. However, the presumption can be rebutted through evidence showing the will-maker suffered an ‘insane delusion’. This concept is articulated in Banks v Goodfellow:
No disorder of the mind shall poison his affections, pervert his sense of right, or present the exercise of his natural faculties- that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
It must be noted that the insane delusion must in some way affect how the will-maker would have otherwise disposed of his or her property under the will. For example, in O’Neil v Royal Trust Co, although the will-maker was confined to a sanitarium and was suffering nervous breakdowns, it was found that the will-maker understood the nature of the will, and the will reflected the will-maker’s true and free intent.
On the contrary, in Ouderkirk v Ouderkirk, [1936] SCR 619, the will was found invalid because the will-maker disinherited his wife under the delusion that his wife was “entertaining men for immoral purposes” even though the wife was in fact “moral and respectable”. But for the delusion, the will-maker would not have disinherited his wife.
There are other legal grounds to contest a will. This article only covers briefly the common ways to contest a will. Please consult a lawyer if you may be contesting a will.
