Lack of Capacity and Undue Influence: Grounds for Contesting a Will in BC
Onyx Law Group · Vancouver, British Columbia
Not every challenge to a will is an argument about fairness. Some challenges ask a more basic question: was the will valid at all? In British Columbia, two of the most common grounds for setting a will aside are lack of testamentary capacity and undue influence. Both go to whether the document reflects the will-maker’s own, freely formed intentions.
Testamentary capacity is the mental ability to make a valid will. A will-maker needs to understand that they are making a will and what it does, have a general grasp of the property they own, and appreciate the people who might reasonably expect to benefit, all without a disorder of the mind distorting those judgments. That is the long-standing common-law test BC courts apply. Illness, dementia, the effects of medication, or cognitive decline around the time the will was signed can all put capacity in question.
Undue influence is a separate problem. Here the will-maker may have had capacity, but someone pressured or coerced them to the point that the will reflects that person’s wishes instead of their own. British Columbia’s Wills, Estates and Succession Act (WESA) can shift the burden of proof in these cases: where a person stood in a relationship of dominance or dependence over the will-maker, the person defending the will may have to show the gift was not the product of undue influence. Our Vancouver estate litigation lawyers look closely at the circumstances around the signing, the will-maker’s health, and who stood to gain.
Both grounds differ from a wills variation claim. A wills variation claim accepts that the will is valid but asks the court to redistribute the estate because a spouse or child was left without adequate provision. A capacity or undue influence challenge goes further and asks the court to find the will itself invalid.
Key points
- Lack of testamentary capacity questions whether the will-maker understood what they were doing: the nature of a will, the extent of their property, and who might expect to benefit.
- Undue influence questions whether someone coerced or pressured the will-maker so that the will reflects another person’s wishes.
- Under WESA, the burden of proof can shift to the person defending the will where there was a relationship of dominance or dependence.
- These are challenges to the will’s validity, which is different from a wills variation claim that accepts the will but asks the court to redistribute the estate.
Learn more
Read how we handle these files on our Vancouver estate litigation lawyer page, or see our overview of the grounds and process for contesting a will in BC.
Concerned a will does not reflect what your loved one truly wanted? Book a consultation with Onyx Law Group to review your options, contact us here.
Frequently Asked Questions
What does testamentary capacity mean in BC?
Testamentary capacity is the mental ability to make a valid will. The will-maker must understand that they are making a will and what it does, have a general sense of the property they own, and appreciate the people who might reasonably expect to benefit. The test comes from Banks v Goodfellow, and a will can be set aside if the will-maker lacked capacity when it was made.
What are suspicious circumstances?
Suspicious circumstances are facts around the making of a will that raise a genuine doubt about whether the will-maker knew and approved its contents. When they are present, the person putting the will forward has to prove the will-maker understood and approved it, following Vout v Hay. An example is a major change that benefits someone who arranged the will while the will-maker was frail or isolated.
How is undue influence different from lack of capacity?
Lack of capacity is about the will-maker’s own mental ability. Undue influence is about pressure from someone else that overpowers the will-maker’s free choice, so the will reflects the influencer’s wishes rather than the will-maker’s. A will-maker can have full capacity and still have been unduly influenced.
Who has to prove undue influence?
Usually the person challenging the will. Section 52 of the Wills, Estates and Succession Act can change that: if you show the will-maker was in a relationship where the other person had the potential to dominate, or where the will-maker was dependent, the person defending the will must then prove there was no undue influence.
Onyx Law Group represents clients in family law throughout British Columbia, estate and trust litigation, estate planning and probate matters. Consult with our experienced BC team at
(604) 900-2538