I often get calls from people about what their chances are of winning if they dispute a will. Take a breath. Disputing wills can be emotionally difficult. Here are some basic tests to help you decide if you feel you can dispute a will and win.
When you should contest a will by
Do your research and make an informed decision within six months. If you’re the spouse or child of the testator, you can apply for a variation of a will pursuant to section 60 of the Wills, Estates, and Succession Act (WESA) if you have not been provided with an adequate, just, or equitable inheritance in all the circumstances. You have to make a claim within 180 days of when the will is probated, or processed as valid, to the Supreme Court of B.C.
If you aren’t a spouse or child of the testator, you may still have a claim to set aside the will for other reasons, such as lack of capacity or undue influence. The same timeliness principle applies. Research your case diligently and make an informed decision sooner rather than later.
What if the will is unfair?
Unfairness is frustrating at best and emotionally painful at worst.
Here’s how the law handles unfairness. Under WESA, the testator must provide for the surviving spouse and children in way that is “adequate, just or equitable”. A testator owes both a legal and moral obligation to provide for his or her spouse. The legal obligation looks at what the surviving spouse would be entitled to receive if there was a separation just prior to the testator’s death. The legal obligation would be looked at under the lens of the Family Law Act, as a notional family claim before the courts. The court also rules based on ‘moral obligation’. Factors include how long the couple was married, the joint standard of living, and any sacrifices the surviving spouse made for the family or for the testator. Another factor is the size of the testator’s family.
Testators only owe a moral obligation to provide for their adult, independent children. Factors to be considered include the quality of the relationship between the child and the parent, whether there has been estrangement, whether there has been misconduct on the part of the child, whether the child has provided extensive caretaking services to the parent, and whether the child has already received an inheritance from the other parent who predeceased the testator.
How do I know if the deceased was mentally able to execute a valid will?
Here are the basic criteria. The testator had to know what a will is when writing it. If the testator had dementia or delusions, that presents an immediate red flag for the court. He or she must have understood the legality of the document and its influence on the surviving family. The testator must have been aware of the assets he or she owned and must also have recognised the ‘moral duty’ owed to the surviving family members. Finally, the testator cannot be suffering from a fixed delusion about a family member that relates to that family member’s inheritance under the testator’s estate. If these factors don’t exist, there is the potential of setting aside the will as invalid.
What if someone pressured the testator?
Subtle manipulation and outright abuse of elderly testators is sickening but does happen. It’s possible that the testator’s caretaker had too much influence in the will. Here’s a note of caution for you: tread carefully.
If the court declares your claim invalid, you might be responsible for the other party’s legal fees. Research your case and decide if you’re willing to take that risk. You must prove that the testator would have acted differently without that influence. If the testator was dependent on the caretaker, your case may be easier to justify.
Stand your legal ground
The emotional stress of legal action is compounded when the issues are deeply personal and involve close family members. At Onyx Law Group, we choose to be a place of support for our clients while providing competent and passionate legal advocacy. Give us a call. Our lawyers seek equitable solutions for you and we stand by you through the process.