Challenging The Validity of a Will BC

Lawyers for Challenging The Validity of a Will or Trust

Our estate lawyers help clients get what they’re owed in unjust enrichment cases.

Elder abuse is, unfortunately, a common occurrence and fact of everyday life in modern society. There are many cases where an unsuspecting testator is taken advantage of by a person they trust – often a spouse or child to execute testamentary documents to distribute their estate in ways that are against their actual wishes.

This can occur when the testator:
a) has no mental capacity to execute any testamentary document
b) was pressured or threatened into executing a testamentary document that was against their wishes.

Wills or trusts that are executed based on undue influence can be set aside in favour of a previous will, or instead, have the estate devolve as an intestacy according to Part 3 of the Wills, Estates and Succession Act (WESA).

The grounds a BC court will set a will aside on

A validity challenge in British Columbia is not a complaint that a will is unfair — that is a different claim, brought under section 60 of WESA to vary the will. A validity challenge says the document should never have taken effect at all. There are four recognized routes to that conclusion, and each carries its own burden of proof, which is why the evidence you gather early tends to decide the case before a judge ever weighs the merits.

Testamentary capacity: the Banks v Goodfellow test

Capacity is measured against a test from an 1870 English case, Banks v Goodfellow, that BC courts still apply. To make a valid will, the will-maker had to understand four things at the time of signing: that they were making a will and what a will does; the general extent of what they owned; who could reasonably expect to benefit from their estate; and they had to be free of any disorder of the mind or delusion that distorted those judgments. The bar is specific to willmaking. A person can have dementia or be seriously ill and still meet it in a lucid interval, and a person can present as perfectly sharp yet fail it because of a fixed false belief about a family member. Capacity is judged as at the moment the will was signed, which is why contemporaneous medical records, the drafting lawyer’s notes, and the recollections of the witnesses carry so much weight.

Knowledge and approval, and suspicious circumstances

Separate from capacity, the will-maker had to actually know and approve the contents of the document they signed. Usually that is presumed once capacity and proper signing are shown. The presumption falls away where “suspicious circumstances” surround the will — for example, where a major beneficiary arranged the drafting, or where a frail testator made sweeping changes that favour the person who drove them to the appointment. Under the approach in Vout v Hay, once suspicious circumstances are raised the person putting the will forward has to prove, on the balance of probabilities, that the will-maker knew and approved what it said. That shift in onus is often the practical hinge of a contested estate.

Undue influence and the section 52 reverse onus

Undue influence is coercion — pressure that overpowers the will-maker’s own wishes so the document reflects someone else’s intentions. It is more than persuasion or a strong personality. WESA changed how these cases are fought. Under section 52, once a challenger shows that the person who benefits was in a relationship where there was the potential to dominate or dependence existed — an adult child managing an ailing parent’s finances, a caregiver the testator relied on — the burden shifts. The beneficiary then has to prove the gift was not the product of undue influence. That reversal is a real advantage for a challenger and is a large part of why capacity and undue-influence claims are so often run together. Our lawyers handle these matters through our undue influence and lack of capacity practice.

Formal validity and the section 58 cure

A will can be perfectly rational and still fail on mechanics. Section 37 of WESA requires a will to be in writing, signed at its end by the will-maker (or by someone else at their direction and in their presence), and signed by two witnesses who were both present at the same time the will-maker signed or acknowledged the signature. A gift to a witness, or to a witness’s spouse, is presumptively void — a trap that catches home-made wills constantly. Section 58 softens the old all-or-nothing rule: it gives the Supreme Court a curative power to treat a defective record as valid if the court is satisfied the document represents the deceased’s true testamentary intentions. That power reaches unsigned drafts, marked-up copies, even electronic records in the right circumstances, but invoking it means litigation and a judge’s discretion rather than a clean, valid will. It is a safety net, not a substitute for getting the formalities right.

Challenging — or defending — the validity of a trust

Trusts are attacked on overlapping but distinct grounds. A person needs capacity to create a trust during their lifetime, and a trust that moves assets away from a vulnerable settlor can be set aside for the same undue influence and lack-of-capacity reasons a will can. A trust also has to satisfy the “three certainties” to exist at all: a clear intention to create a trust, certainty about which property is held on trust, and certainty about who the beneficiaries are. A document that fails any of the three does not create a valid trust, and the assets may fall back into the estate. Because trusts are often used precisely to move assets outside a will — and outside a wills variation claim — the validity of a trust and the size of the estate are frequently argued in the same file.

We believe it’s important to know your legal rights and obligations before making any decisions. Contact us today to discuss your matter with a passionate and knowledgeable lawyer who can advise you on the best steps forward.