Have you been unpleasantly surprised by what a loved one’s Will says? Do you suspect that a family member’s Will does not reflect their true wishes? You can contest a Will in BC to seek justice and ensure your loved one’s true wishes are respected. Read on for important information and answers to common questions about contesting wills.
Contesting a will in British Columbia can be a complex and challenging process, but it is possible to win if you have a valid legal claim and can provide evidence to support your case. In BC, there are only a few legal grounds for contesting a Will:
Contesting a will on the grounds of lack of testamentary capacity involves arguing that the person who made the will maker (the testator) did not have the mental capability to understand the nature and implications of the will at the time it was made.
You can ask the Court to set aside a Will that was made if you can prove undue influence on the will maker (for example, threats or pressure from a relative or caretaker to the degree that the Will does not reflect the will maker’s true intentions).
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 witnesses who also sign the Will. You can ask the Courts to invalidate a Will that doesn’t meet those formal requirements.
You can challenge a Will that you believe was faked or forged. This is particularly common for handwritten Wills. To prove the Will is fraudulent, you’ll need a handwriting expert to support your case.
A Will can be contested if it is ambiguous or unclear (e.g., the list of beneficiaries is not clearly defined). The Court can interpret the Will to resolve the ambiguity.
Yes, but only if you are the spouse or child of the will maker. BC law says that a person must provide for their surviving spouse and children in a way that is “adequate, just or equitable.” Section 60 of BC’s Wills, Estates and Succession Act allows spouses and children of a will maker to ask the Court to vary the terms of the deceased’s Will on the basis that the spouse or child was unjustly disinherited or not adequately provided for in all the circumstances.
There are strict deadlines that must be met if you want to vary or challenge a Will. The deadline (“limitation period”) depends on the type of claim you are bringing.
For example, a two-year limitation period applies if you are contesting a Will on the grounds of mental incapacity or undue influence. That means you must start your legal action within two years of the date you knew (or reasonably should have known) that you had a claim.
The limitation period is different if you’re the spouse or child of the will maker applying to vary the Will pursuant to section 60 of the Wills, Estates, and Succession Act. 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 or administration.
Another point to keep in mind? It’s ideal if you can contest the Will before it goes into probate. It’s not that you can’t challenge a probated Will; it is just that you will have to bring a motion in Court for the return of the Certificate of Appointment of Estate Trustee if the Will has gone to probate. If you think you want to contest a Will in BC, the best course of action is to talk to a lawyer immediately to ensure deadlines aren’t missed.
Contesting a Will in BC can be a complex and challenging process. The best first step is to consult with a lawyer who is experienced in contesting Wills in British Columbia. Your lawyer can advise you 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.
The evidence you’ll need depends on the grounds for your legal challenge to the Will. Documents such as medical records, statements for bank accounts, and other documents may be relevant to your claim. If you suspect undue influence, try to find evidence of the relationship between the person who unduly influenced the deceased and the deceased. If you are claiming the Will is forged or fake, you’ll need expert evidence to support your case.
The next step is to start legal proceedings in the Supreme Court of British Columbia. You will need to file a Wills Variation Claim or other claim contesting the Will. Starting the legal process preserves the limitation period and provides the executor of the estate with notice that the Will is being contested.
Once your case is started, there may be opportunities to negotiate to reach settlement without the need for a trial. It may be advantageous to attend mediation or try other alternative dispute resolution options.
If settlement is not reached, the final step is to attend court to present your case at trial. You will need to provide evidence to support your claim and cross-examine any witnesses called by the executor of the estate.
If you brought a wills variation claim and the Court agrees that the Will failed to make adequate provision or unfairly disinherited you, the Court will impose an alternative distribution of the estate assets that meets the deceased’s legal obligation and/or moral obligation. The Court will redistribute the estate in a way that ensures the surviving spouse’s or child’s share is “adequate, just and equitable in the circumstances.”
If, on the other hand, you challenge the validity of the Will on other grounds (e.g., undue influence, the Will was not executed properly, fraud, lack of capacity), there are a few possible outcomes of a successful case. Parts of the Will may be invalidated, modified, or interpreted by the Court.
If the entire Will is declared 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 is distributed according to the laws of intestacy, which are set out in Part 3 of the WESA.
Lastly, you should be aware of the risk of costs and other potential repercussions. The general rule is that where there is a genuine dispute about the validity of a Will, even an unsuccessful party may be awarded costs paid out of the estate. But that does not you should expect to receive costs from the estate. 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.
The top tips for a successful Will challenge are simple. Act quickly and within the legal limitation periods. Be realistic about your expectations; get advice early on about the strength of your case and the potential outcomes. Maintain clear and regular communication with your lawyer. And finally, prepare yourself for the emotional challenges that may arise. The issues tend to be deeply personal and involve your close family members.
Onyx Law Group has the experience and knowledge to help you. When it comes to estate litigation, we are empathetic, creative, and focused on getting the results you want. Contact us today.
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