Disputing a will can be a difficult and extremely emotional process. Nevertheless, will challenges happen quite frequently in British Columbia. In some situations, it’s the only way to seek justice and ensure that final wishes are honored.
To successfully contest a will in BC, you’ll need to prove that there are valid grounds for contesting the will and provide evidence in the form of testimonies, medical records and various documentation. The odds of winning a will contest in your case depends on several factors, including having proper legal standing, as well as convincing legal arguments and strong, reliable evidence to support your claim.
The legal landscape for contesting wills is not easy to navigate. Going through the will contest process alone will only increase your stress and may negatively impact your relationship with family members. Instead, seek guidance from Onyx Law Group if you are embroiled in a will dispute. Our Vancouver-based estate litigation lawyers provide trusted legal advice and clear, effective strategies for dispute resolution. Contact us today for a consultation.
Today’s blog post discusses the types of evidence used to dispute a will in British Columbia. It also provides a rundown of the process of a will contest and the possible outcomes of one, followed by some helpful FAQs.
What Are the Grounds for Contesting a Will?
The evidence you’ll need depends on the grounds for contesting the will. There are several grounds for contesting a will in British Columbia, including lack of testamentary capacity, undue influence, fraud or forgery, ambiguity in the will, and allegations that the will was not executed properly.
There may also be legal grounds to bring a wills variation claim pursuant to section 60 of the Wills, Estate and Succession Act. A wills variation claim is brought to address unfairness or disinheritance, but only the spouse (legally married spouse and common law spouse living in a marriage like relationship) and children (biological and adopted children) of the will-maker have legal standing to bring that type of claim.
What Evidence Is Needed to Contest a Will?
Vancouver will contests tend to be very complex. A high level of preparation and strong, credible evidence are the keys to securing a favorable outcome. Mere speculation or suspicion is not enough. You need sufficient evidence to bolster your claims.
It’s highly recommended that you obtain legal advice if you are considering starting court proceedings. An estate litigation lawyer can advise you on the evidence required to challenge a will in British Columbia, tailored to your case, and help you by gathering and preserving vital documents, records, witness testimony, and expert opinions.
Here is a list of commonly used types of legal evidence to challenge a will in British Columbia.
Witness Testimony
Fact witnesses can provide their independent observations with respect to the conduct of the deceased person, key events, etc. Evidence from these types of witnesses can be submitted in the form of an affidavit or it can be provided in court via oral testimony under oath. For instance, if the dispute is that the will was not executed properly (e.g., improper execution because there weren’t two witnesses, or because the will-maker did not sign the document), you’ll need evidence from the people present when the will was executed.
By way of another example, if the allegation is that someone exerted undue influence on the will-maker to such a degree that the will does not reflect their true wishes, you’ll need evidence from the estate lawyer who took instructions and prepared the will. Testimony from family members, friends, neighbours, and healthcare providers can also be vital to prove undue influence (e.g., evidence of threats or pressure from a relative or caretaker) or that the testator lacked testamentary capacity when they signed the will (e.g., testimony relating to the will maker’s mental illness, confusion, delusions).
Expert Testimony
The witness testimony we just discussed is best when it is substantiated by objective evidence from independent experts. For example, handwriting experts can be called upon to analyze handwritten wills (“holographic wills”) and provide their opinion as to whether they are fake or forged, or whether the signature is, in fact, the signature of the deceased person.
While testamentary capacity is a legal test, not a medical test, medical professionals are often engaged to review medical records, assessments, reports, and other documents to provide a retrospective opinion on the deceased’s mental capacity when the will was prepared and executed. For example, a geriatric psychiatrist can provide expert evidence on how dementia or other chronic illness impacted a will-maker’s capacity.
Expert medical evidence will be weighed along with other evidence, such as the observations of people who were present at the time the will was signed, testimony of friends and family who spent time with the will-maker at the relevant time, and evidence from the estate planning lawyer who took the instructions and saw to the signing of the will.
Medical Records
Medical records can be another key to a successful will contest case. If you are challenging a will’s validity on the basis of lack of requisite testamentary capacity, medical records can be introduced as evidence to demonstrate the will-maker’s health and mental status at the relevant time.
Doctor’s notes detailing cognitive decline, hospital or nursing home records showing the testator’s health status, mini mental status exam (MMSE) results, and psychiatric evaluations/diagnoses of mental disorders are commonly obtained and relied upon in estate litigation cases. The deceased person’s treating doctor can also provide evidence of their recollection of the deceased’s medical condition.
Financial Records
Financial records are often used as legal evidence to challenge a will in British Columbia. Statements from the deceased’s bank accounts may demonstrate large transfers to a person suspected of fraud or exerting undue influence. Tax records can show irregularities in asset management. Investment records may show the depletion or sudden change with respect to financial holdings.
Personal Communications and Notes
Documented communications and interactions can be very helpful to your case. For example, text messages, emails, social media posts, and personal letters can be used to demonstrate coercion, pressure, or threats that unduly influenced the will-maker. Notes of the will-maker’s conversations with their estate lawyer may provide evidence of the will-maker’s true intentions or state of mind. Signed birthday cards can be used to demonstrate forgery in the will. In some cases, videos or photographs can provide valuable evidence.
Legal Paperwork and Other Types of Records
Other types of records can shed light on key matters in estate litigation. Title documents substantiating joint tenancy holdings (real property, bank accounts, etc.) and beneficiary designations (e.g., life insurance policies) can demonstrate the deceased person’s overall estate plan, which is relevant to whether the will-maker made adequate provision for their spouse and children.
Prior wills may be needed to show sudden, late-in-life changes that favour a person who allegedly exerted undue influence. Property transfers may show suspicious activity before the deceased’s death. Powers of Attorney (and records showing what was done by the attorney leading up to the deceased’s death) may also be relevant in that regard.
The types of evidence discussed above are by no means an exhaustive list; your best bet is to reach out to an estate and probate litigation lawyer for advice on proof needed to contest a will in BC.
How to Collect and Organize Evidence to Contest a Will in BC
You should not delay in gathering evidence and documents needed to contest a will in BC. Delays increase the risk that evidence will be lost or destroyed. Memories fade over time. Documents get thrown away or misplaced. Important witnesses may move or pass away. Incomplete or missing evidence can significantly weaken your case. If you aren’t sure where to begin, talk to an estate lawyer as soon as possible.
You should carefully consider the quality and completeness of the evidence you collect. Obtain originals whenever possible. Get certified copies of official documents and reports. Photocopies must be clear and readable. Preserve all evidence by making back-up copies and/or digital copies.
Be as organized as possible when storing the evidence you’ve collected. Decide if it makes the most sense to organize evidence by type of document, legal issue, chronological order, etc. Use folders, subfolders, and clear, consistent file names.
Talk to your lawyer about the need for court applications to obtain evidence or documents from third parties. Your lawyer can also request production of documents in the possession or control of other parties to the litigation, and possibly from certain non-parties.
How to Contest a Will in BC
Contesting a will in British Columbia can be a complex and challenging process, but it’s possible to win if you have a valid legal claim and can provide evidence to support your case. Here are the steps to take if you wish to contest a will in British Columbia.
1. Determine Standing
British Columbia estate law is clear that only certain people are entitled to bring legal proceedings, a concept known as “legal standing.” Only the spouse or child of the deceased can bring a wills variation claim.
As for the other legal grounds mentioned above, persons entitled to contest a will must have an interest in the deceased’s estate. That includes beneficiaries named in the most recent will or prior wills, heirs who would inherit if the person died intestate (i.e., died without a will), and people with a financial interest in the deceased’s estate.
2. Gather Evidence
A person contesting a will has the burden of providing sufficient evidence to substantiate their claim. Court applications may be needed to obtain disclosure of certain types of documents and records from third parties.
3. Engage Legal Representation
It’s highly recommended that you obtain legal advice from an experienced lawyer. An estate litigation lawyer can advise you on the strength of your claim, explain what evidence is needed to dispute a will in BC, ensure deadlines aren’t missed, and help you prepare the best legal strategy for your case.
4. File a Notice of Will Contest
Filing a Notice of Dispute prevents the will from entering probate for a period of time. The Notice of Dispute alerts the estate trustee of a potential dispute and effectively pauses any advancement of the administration of the estate.
5. Attend Mediation or Settlement Discussions
Once the estate trustee receives a Notice of Dispute, they must take steps to resolve the dispute. This may involve mediation, negotiation, or other means of resolution.
6. Proceed to Court
If the dispute cannot be resolved through informal means, the next step is to proceed to trial.
Possible Outcomes of Will Contests Vancouver
We’ve talked about how to contest a will in BC. Now, let’s talk about potential results.
If your will contest case is successful, the will or parts of the will are declared invalid. The will-maker’s next most recent valid will is given effect and governs how the estate is distributed. If there is no other valid will, intestacy laws determine how the estate must be distributed.
If your wills variation claim is successful, the court will impose an alternative distribution of the estate that ensures the surviving spouse’s or child’s share is “adequate, just and equitable in the circumstances.”
If you don’t succeed in varying the will or challenging the will’s validity, the will is given effect, and the deceased’s estate must be distributed in accordance with it. You may be on the hook for legal costs (yours and the other parties involved in the court proceedings).
Need an Estate Litigation Lawyer?
If you think you want to dispute a will in BC, the best course of action is to talk to an estate litigation lawyer immediately to ensure deadlines aren’t missed and crucial evidence is not lost.
Onyx Law Group has a team of experienced estate lawyers with the skills and knowledge to help you. When it comes to Vancouver will contests, we are empathetic, creative, and focused on getting the results you want. Contact our team of experienced British Columbia estate litigation lawyers today.
Will Contests Vancouver: FAQs
How to Prove a Will is Invalid in BC?
A BC Will can be proved invalid with evidence of non-compliance with formal requirements (e.g., will not signed by will-maker, not properly witnessed). However, BC courts have the power to “cure” a will of such deficiencies, thereby upholding it as valid, pursuant to section 58 of WESA. The court can consider any record, documents, email, etc. to discern if the will aligns with the deceased person’s intentions before exercising that curative power.
There are other grounds that may be used to challenge a will’s validity, even if it meets the formal requirements. They include lack of mental capacity and undue influence. The evidence needed to prove invalidity on those grounds will depend on the circumstances and grounds you intend to rely on.
How Can You Strengthen Your Case to Contest a Will in BC?
You can strengthen your case by collecting evidence as early in the process as possible. Working with an experienced estate lawyer is another way. Your lawyer can identify key evidence and help you to gather, organize and preserve the best evidence to support your case through the discovery process (discovery and inspection of documents, examinations for discovery to gain important admissions, etc.).
How Long Do You Have to Dispute a Will in BC?
It’s important to understand how long you have to challenge a will to avoid losing your right to do so. There are strict deadlines (“limitation periods”) that depend on the type of claim you bring. A two-year limitation period applies if you are contesting a will on the grounds of mental incapacity, undue influence, fraud, forgery, improper execution of the will, ambiguity or errors in the will.
The limitation period is different if you’re the will-maker’s spouse or child applying to vary the will pursuant to section 60 of the Wills, Estate and Succession Act. Court proceedings must be started within 180 days of the date the British Columbia Supreme Court issues a grant of probate.
Is It Worth It to Dispute a Will?
Estate litigation can be time-consuming and expensive. You should consider consulting with an estate litigation lawyer to find out the potential outcomes and likelihood of success. The dollar value of what you may reasonably expect to receive should be weighed against the potential costs and emotional burden to determine if legal proceedings are worthwhile in your situation. It’s also a good idea to discuss alternatives to litigation such as negotiation and mediation, which can effectively resolve disputes without drawn out court proceedings.
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