You may have reasons to contest a will in BC if you believe it does not reflect your loved one’s true wishes or contains legal errors. The court has the authority to declare a will invalid, change its terms if it unfairly excludes you, or interpret ambiguous or incorrect provisions. It’s crucial to understand the legitimate legal reasons for contesting a will in BC, as personal feelings or disappointment alone won’t suffice to support a challenge.
At Onyx Law Group, our estate litigation lawyers bring over a decade of experience guiding clients through the complex process of contesting wills in BC, as part of our broader practice areas in estate and family law. Our team is dedicated to providing compassionate support, clear guidance, and robust advocacy tailored to your individual needs. Contact us today for trusted legal guidance and the dedicated representation you deserve.
This blog will explain the key legal grounds for contesting a will in BC and help you understand when a challenge may be justified.
Understanding the Grounds for Contesting a Will in BC
Filing a wills variation claim in British Columbia is a serious legal step that requires valid grounds and supporting evidence. Common reasons include concerns about the will-maker’s mental capacity, undue influence, fraud, or failure to meet legal formalities. Understanding these grounds is essential before starting a claim, as not every disagreement with a will’s terms is enough to challenge it. With the right knowledge, you can better assess whether a contest is justified.
Who Can Challenge the Validity of a Will in BC?
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 ability 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 challenge to the will is successful, the will or parts of the will are declared invalid. In that situation, the will-maker’s most recent valid will is used to govern the distribution of the estate. If there is no previous will, the rules of intestacy determine how the estate must be distributed.
Can the Court Vary a Will?
British Columbia is unique, as it is the only province in Canada with will variation legislation (s. 60 of the Wills, Estates and Succession Act). That rule allows the court to adjust the terms of a valid will to ensure a fair sharing of assets, especially for a spouse or child who hasn’t received a fair inheritance.
There is another provision of the Wills, Estates, and Succession Act 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 assumes the will is valid but allows the court to interpret or construct it to align with the will-maker’s wishes.
What Are the Grounds for Contesting a Will in BC?
For what reasons can someone contest a will? In British Columbia, not every disagreement with a will is enough to challenge it; there must be valid legal grounds. Common reasons include concerns that the will-maker lacked mental capacity or was unduly influenced, or that the will was improperly executed, fraudulent, or forged.
In some cases, spouses and children may also seek relief under BC’s Family Law Act and Wills Variation provisions if they were unfairly left out. Understanding these grounds is the first step in determining whether you have strong reasons for contesting a will.
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 moral and legal obligations to provide for family members); and
- Was free from delusions, mental disorders, dementia, and other conditions that could impair 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 to confer a power of attorney, for example. A will-maker may have sufficient cognitive 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 documents.
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.
To have a successful challenge, there must be some evidence of actual influence. It’s not enough to show that a person had the power to exert undue influence. There must be proof that excessive power was used and that the will was made because of it. In other words, it must be shown that the influencer exerted 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. If the relationship in question involved both physical and emotional dependency, the burden of proof differs. 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 is that of a caretaker and a ward. In such cases, the burden is on the person accused of wrongdoing to disprove the allegation by demonstrating that the will-maker acted with his or her own “full, free, and informed thought” (i.e., that the will was a product of his or her mind).
Fraud or forgery
A will can be contested if it is forged. For instance, if a person prepares a will in someone else’s name and forges their signature, the estate would go 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:
- It must be in writing.
- The will must be signed at the end by the testator, or the testator must acknowledge their signature in the presence of two witnesses who are present at the same time.
- It must be signed by two witnesses in the presence of the will-maker.
If a will does not meet these formal requirements, it is considered invalid and has no legal effect unless an applicant successfully obtains a court order under s. 58 of WESA to ‘cure’ its deficiencies, or unless the will is deemed valid according to the jurisdiction in which it was made under s. 80 of WESA.
Other Ways to Challenge a Will
In addition to directly challenging a will’s validity, there are other legal avenues available if you believe it was unfair, unclear, or improperly executed. For example, you may ask the court to interpret ambiguous wording, rectify errors in the drafting, or vary the terms of the will under BC’s Wills Variation provisions if you were unjustly excluded.
These options can provide meaningful remedies without requiring the entire will to be struck down. Exploring these alternative approaches ensures that your rights are protected and that the deceased’s true intentions are properly respected.
Will’s Variation Claim
As discussed above, Section 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 will variation claim. The court will consider whether the inheritance in the will meets the legal obligation and 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.
How to Contest a Will in BC?
Contesting a will in British Columbia is a formal legal process that requires valid legal reasons and meticulous preparation. It typically involves filing a claim in court, gathering evidence such as medical records or witness testimony, and demonstrating issues like lack of capacity, undue influence, or unfair treatment under BC’s Wills Variation provisions.
Because the process can be complex, costly, and emotionally challenging, it’s important to seek legal guidance before taking action. Understanding the steps involved can help you decide whether contesting a will is the right choice for your situation.
How Long Does It Usually Take to Contest a Will?
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, common-law spouse, or biological 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 initiate your legal action within 180 days from the date when the British Columbia Supreme Court issues a grant of probate.
If you are considering contesting a will in BC, it is advisable to seek legal advice immediately to ensure deadlines aren’t missed. An experienced lawyer can also help you understand your rights and improve your chances of a successful claim.
Need Help Contesting a Will in BC?
Contesting a will in British Columbia is a serious decision that requires clear legal grounds, such as a lack of capacity, undue influence, fraud, improper execution, or unfair treatment of spouses and children under the Wills Variation provisions. While feelings of disappointment alone are not enough to support a challenge, valid evidence can lead the court to declare a will invalid, vary its terms, or correct mistakes.
Are you considering contesting a will in BC but unsure of your legal options? At Onyx Law Group, our estate litigation team draws on over a decade of experience across key practice areas to protect clients’ rights. We provide clear, strategic advice and strong advocacy to help you pursue a fair outcome. Reach out to us today to discuss your situation with a trusted legal professional.
Frequently Asked Questions
If you’re considering challenging a will in British Columbia, you likely have important questions about your rights and the legal process. Below, we’ve answered some of the most common FAQs to help you better understand when and how a will can be contested.
What Are the Costs of Contesting a Will in BC?
The costs of contesting a will in BC vary depending on factors such as the complexity of the case, the number of parties involved, and the law firm you choose. In general, legal fees can range from several thousand dollars to tens of thousands, especially if the matter proceeds to trial.
What Evidence Do You Need to Contest a Will?
To contest a will, you need evidence such as medical records, witness statements, or expert opinions showing issues like lack of capacity, undue influence, fraud, or improper execution. Financial documents, correspondence, and prior versions of the will can also strengthen your case.
Who Is Most Likely to Contest a Will?
The people most likely to contest a will are close family members such as spouses, children, or dependents who feel they were unfairly treated or left out. In some cases, other beneficiaries involved or individuals who believe a more recent, valid will exists may also challenge it.
What Percentage of Contested Wills Are Successful?
In British Columbia, roughly 30–40% of contested wills are successful, though outcomes depend heavily on the strength of the evidence and the specifics of the case. To dispute a will and win is based on clear proof that undue influence, lack of capacity, or unfair distribution exists.
Is It Worth It to Contest a Will?
Reasons for challenging a will can be worth it if you have strong evidence and a significant financial or personal interest at stake. However, the process can be costly, time-consuming, and emotionally draining, so it’s important to weigh the potential benefits against the risks.