Reasons to Contest a Will in BC

You may be able to contest a Will if you believe it doesn’t reflect the wishes of a family member. Contesting a Will means applying to the BC court to have a Will—or parts of a Will—declared invalid. It may also be open to you to ask the court to vary a Will if you believe you’ve been unfairly left out, or to interpret the terms of a Will if it appears to contain ambiguity or mistakes.

If you’re considering contesting a Will in BC, or seeking to rectify or vary a Will, it’s important to understand the permissible grounds for doing so. You may have some suspicions or feel like you didn’t get the inheritance you expected, but that may not be enough to support a Will challenge.

Understanding the Grounds for Contesting a Will in BC

Challenging a Will’s validity

Only certain people can contest the validity of a Will and there are limited legal reasons to do so. In British Columbia, the grounds for contesting a Will’s validity are limited to lack of capacity, undue influence, fraud or forgery, and non-compliance with formal requirements.

You must have evidence to support your claim that the deceased lacked the mental capacity to make a Will, was unduly influenced by someone else, that the Will is a forgery or fraud, or that it was not executed in accordance with the requirements of the Wills, Estates and Succession Act (“WESA”). 

If your Will challenge is successful, the Will or parts of the Will are declared invalid. The will maker’s next most recent valid Will is used in that situation and governs how the estate is distributed. If there is no previous Will, the rules of intestacy determine how the estate must be distributed. 

Asking the Court to interpret or vary a Will

British Columbia is unique, as it is the only province in Canada with wills variation legislation (s. 60 of the Wills, Estates and Succession Act). That provision allows the court to change the terms of an otherwise valid Will to impose a fair distribution of assets, specifically in the case of a spouse or child who has not been provided an adequate, just, and equitable inheritance.

There is another provision of WESA that allows an applicant to claim that a Will’s contents need to be “rectified” to truly reflect the will maker’s testamentary intentions. WESA s. 59 presumes that the Will, is in of itself a valid Will, but provides an opportunity for the court to have more expanded powers to interpret or construct the Will so that it truly conforms with the will maker’s intentions.

On what grounds can a Will be contested in BC?

Lack of mental capacity

A will maker must have the requisite testamentary mental capacity to make a Will. A Will can be invalidated if there is evidence to prove that the will maker was not mentally capable. Mentally capable in the context of making a Will (also known as “testamentary capacity”) means that the person making the Will:

• understood the nature and effect of what he or she was signing;
• knew the size and composition of his or her estate (i.e., the value of the estate);
• could identify who might ordinarily expect to inherit from their estate (i.e., understood his or her legal obligation and moral obligation to provide for family members); and
• was free from delusions, mental disorder, dementia, etc. that would affect their judgment.

Cognitive decline on its own is not enough to invalidate a Will. Testamentary capacity is not the same thing as the capacity to manage one’s property or the capacity to confer a power of attorney, for example. A will maker may have sufficient mental capacity to make a Will even if their ability to manage other aspects of their affairs is impaired. 

Testamentary capacity is not a medical test—it is a legal test. However, where a will maker’s mental capacity to make a Will is challenged, the court will make its determination based on medical evidence including medical records.  

Undue influence

Undue influence involves situations where a person executes a Will against their wishes because another person influences, pressures, coerces, or threatens them. A Will that was executed based on undue influence can be declared invalid by the court and can be set aside in favour of a previous Will.

There must be some evidence of actual influence to have a successful challenge. It’s not enough to show that a person had the power to exert undue influence. There must be evidence that overbearing power was in fact exercised and that the Will was made because of that exercise of power. In other words, it must be shown that the influencer exercised undue influence, and that the victim acted differently than he or she would have if their decision had been made independently.

The general rule is that the person alleging undue influence has the burden of providing evidence to prove it. The burden of proof is different if the relationship in question was one of physical and emotional dependency. Section 52 of WESA sets out a presumption of undue influence in favour of setting aside a Will when the person contesting the Will can prove there was a potential that the will maker was in a relationship of dependence and dominance with the defendant in the case. An example of such a relationship would be of caretaker and ward. In such cases, the burden is on the person alleged of wrongdoing to disprove the allegation by showing the will maker acted of his or her own “full, free and informed thought” (i.e., that the Will was the product of his or her own mind). 

Fraud or forgery

A Will can be contested if it is faked or forged. A prime example would be where a person prepares a Will in someone else’s name and forges that person’s signature on it, so the estate goes to the fraudster.

Allegations of fraud and forgery are especially common in situations where the deceased left a handwritten Will. To prove the Will is fraudulent, you’ll need a handwriting expert to support your case.

Non-compliance with formal requirements

For a Will to be valid in British Columbia,  it must meet the formal requirements set out in s. 37 of WESA:

1. it must be in writing;
2. it must be signed at its end by the will maker, or the signature at the end must be acknowledged by the will maker as his or hers, in the presence of two witnesses present at the same time; and
3. it must be signed by two witnesses in the presence of the will maker.

If a Will doesn’t meet these formal requirements, it is an invalid Will and of no force or effect unless an applicant is successful in obtaining a court order relying on s. 58 of WESA that the Will is “cured” of its deficiencies, or the Will is valid pursuant to the jurisdiction that it was made pursuant to s. 80 of WESA.

Other ways to challenge a Will

Wills variation claim

As discussed above, s. 60 of WESA 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 didn’t receive adequate provision in all the circumstances. BC law says that a person must provide for their surviving spouse and children in a way that is “adequate, just or equitable.”

It’s important to emphasize that only the spouse or child of the will maker can bring a wills variation claim. The court will consider whether the inheritance in the Will meets the legal obligation and/or moral obligation to the claimant, and weigh competing moral claims of other beneficiaries before determining if the Will should be varied.

Ambiguity or errors in the Will

A Will can be contested if it is ambiguous or unclear, for example, if the list of beneficiaries is not clearly defined. Using WESA s. 59, the court can interpret a Will and use its court wide powers to change the terms of a Will that is otherwise valid on its face to resolve the ambiguity.

Section 59 of WESA provides claimants who are not spouses or children of the deceased (and thus who cannot claim to vary a Will in their favour using s. 60 of WESA) with an additional cause of action to try to challenge a Will in their favour.

What is the timeframe for contesting a Will in BC?

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 instance, a two-year limitation period applies if you are contesting a Will on the grounds of mental incapacity or undue influence. 

The limitation period is different if you’re the spouse or child of the will maker applying to vary the Will pursuant to s. 60 of WESA because you weren’t provided with an adequate, just, or equitable inheritance. 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.

If you think you want to contest a Will in BC, the best course of action is to seek legal advice immediately to ensure deadlines aren’t missed.

Need help contesting a Will in BC?

Contesting Wills can be a complex and emotionally draining process. The stress of legal action is compounded when the issues are deeply personal and involve close family members. It’s extremely important to get legal advice before proceeding. Onyx Law Group has the experience and knowledge to help you through the process of contesting a Will in BC. 

We choose to be a place of support for our clients while providing competent and passionate legal advocacy. Contact us today if you are considering contesting a Will in BC.