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Who Can Contest a Will in British Columbia?

A clear estate plan can ensure the smooth transfer of assets, minimize estate taxes, and provide significant peace of mind. Proper estate planning can also help avoid disputes among surviving family members.

Will challenges happen when plans go awry (or aren’t made in the first place). Contesting a will can be a difficult and emotional process, but for some, it may be the only way to seek justice and ensure that their loved one’s final wishes are honored. In British Columbia, the ones who are eligible to contest a will are the deceased’s spouse and children, the estate trustee, and someone who has interest in the estate.

The legal landscape for contesting wills is not easy to navigate. Going through the process alone will only increase your stress and may in fact worsen the impact of the dispute on your relationship with family members. Instead, seek guidance from Onyx Law Group if you are embroiled in an estate-related dispute. Our Vancouver-based estate litigation lawyers provide trusted legal advice and clear, effective strategies for dispute resolution. Contact us today for a free initial consultation.

In today’s blog post, we’ll discuss how to contest a will, the intricacies surrounding it, and answer the question of who exactly can contest a will in British Columbia.

What Is a Will?

What Is a Will?

A will is a key component of good estate planning. A person’s Last Will and Testament is a document that shows their final wishes for what they want done with their assets and personal possessions after they die. A will must meet certain requirements or “formalities” so that it is legally binding and enforceable. The formal requirements, as set out in section 37 of BC’s Wills, Estate and Succession Act (“WESA”), state that a will must be:

  • In writing;
  • Signed by the will-maker; and
  • Signed in the presence of two witnesses who are over the age of majority who also sign the will.

If a will doesn’t meet those formal legal requirements, it is not enforceable.

What Happens if You Die Without a Will?

According to BC inheritance and estate laws, if a person dies without a valid will, they are said to have “died intestate” and their estate must be distributed in accordance with the intestacy laws set out in WESA. Intestacy laws are strictly applied. They dictate who inherits and how much, based on the total value of the deceased’s estate and the combination of relatives the deceased leaves behind.

Who Can Contest a Will in BC?

Who Can Contest a Will in BC?

It’s important to understand that the grounds for contesting a will are not open to just anyone. British Columbia estate law is clear that only certain people are entitled to bring legal action (known as “legal standing”).

First, let’s look at who can bring a wills variation claim. Only the spouse or child of the deceased can bring a claim to vary the will. “Spouse” here means a legally married spouse and a common-law spouse. “Child” means biological child and includes adopted children of the deceased. Even adult children of a deceased person can apply to vary their parent’s will. The stepchild of a deceased person does not have legal standing to bring a wills variation claim.

What about the other grounds for contesting a will discussed above? To bring legal action using any of the other grounds, a person must have an interest in the estate. So, a person would be eligible to contest a will if they have an interest in the estate as a beneficiary named in the most recent will, as a beneficiary named in a previous will, or as an heir who would inherit under the rules of intestacy if the will is deemed invalid.

People with a financial interest in the estate may also have legal standing (e.g., a person to whom the estate owes a debt). Lastly, the estate trustee—also known as the estate executor—has standing to bring certain types of legal action, such as an application to rectify a will under WESA s. 59 to resolve ambiguity in the will.

Who Can Not Contest a Will?

If you’re a friend or relative (other than a spouse or child) of a will-maker, you cannot bring a wills variation claim, even if you are disappointed with what you got or didn’t get anything in the will. You may, however, be able to bring other types of legal action, such as a constructive trust claim or an unjust enrichment claim if you have been wrongfully deprived of assets or property. You should contact one of our estate litigation lawyers immediately to discuss rights and options to remedy unfairness.

Distant relatives, friends, and acquaintances of a deceased person don’t have the right to contest the will if they aren’t named as a beneficiary in it. And of course, anyone who has missed the limitation period to start legal action can’t contest a will.

Legal Grounds for Challenging a Will in BC

Legal Grounds for Challenging a Will in BC

In British Columbia, the grounds for contesting a will are limited. Here are the most common reasons why wills are contested.

Mental Incapacity

You may be able to ask the Court to set aside a will if it was signed by a will-maker who didn’t have the mental capacity to make a will. Medical records are relevant here, but the test for testamentary capacity is a legal test, not a medical test.

Undue Influence or Coercion

You may be able to ask the Court to set aside a will that was made because someone unduly influenced the will-maker. To prove undue influence, you will need evidence; for example, evidence of threats or pressure from a relative or caretaker to the degree that the will does not reflect the will-maker’s true intentions.

Improper Execution of the Will

For a will to be valid, it must meet the formal requirements set out in s. 37 of WESA (see above). You can ask the Courts to invalidate a will if it was not executed properly. The will-maker’s previous will (if a valid one exists) would be given force if the more recent will is invalidated.

Fraud or Forgery

You may be able to 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.

Ambiguity in the Will

A will can be contested if it is ambiguous or unclear (for example, the list of beneficiaries is not clearly defined). The Court’s interpretation of the will resolves the ambiguity.

Unfairness in the Will

Certain people can ask the Court to vary a will in their favour if they were treated unfairly or disinherited. This is known as a “wills variation claim” and it is provided for in WESA s. 60. Wills variation claims are discussed in greater detail below.

What Is the Process of Contesting a Will in BC

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, proper standing, and can provide evidence to support your case. Steps typically include gathering evidence, starting legal action in the BC Supreme Court, attending mediation or using other forms of alternative dispute resolution to reach a settlement, and proceeding to trial if an out-of-court resolution is not possible.

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.

Statute of Limitations in Contesting a Will

Statute of Limitations in Contesting 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 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 will maker’s spouse or child applying to vary the will pursuant to WESA s. 60. 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 is that it is 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 connect with one of our estate litigation lawyers immediately to ensure deadlines aren’t missed.

What Is a Wills Variation Claim?

BC law is unique in that it allows a will-maker’s spouse or child to contest a will in the event they were unjustly disinherited or inadequately provided for. The court may choose to impose an alternative distribution of the estate assets that ensures the spouse or child receives a share of the estate that is “adequate, just and equitable in the circumstances.”

Factors Affecting the Court Decision on the Fairness of a Will

Factors Affecting the Court Decision on the Fairness of a Will

A will-maker owes both a legal obligation and a moral obligation to provide for his or her spouse and minor children. For example, the legal obligation to a surviving spouse considers what the surviving spouse would be entitled to receive if there had been a separation just prior to the will-maker’s death, looking through the lens of the Family Law Act. When considering the moral obligation toward a will-maker’s spouse, the Supreme Court will consider factors including how long the couple was married, the joint standard of living, and any sacrifices the surviving spouse made for the family or for the will-maker.

BC will-makers do not have a legal obligation to provide for adult children in their will but do owe a moral obligation to make some provision for adult children if the size of the estate permits it, and in the absence of circumstances negating the existence of a moral obligation. The moral obligation to adult children does not typically outweigh the moral obligation to provide proper maintenance to a surviving spouse or dependent children (i.e., minor children or children not able to be financially independent for other reasons such as disability).

In assessing a wills variation claim, the Supreme Court will look at assets that pass outside of the will, such as joint tenancy holdings, joint bank accounts, or process of life insurance policies.

Can You Keep Your Spouse or Child Out of a Will?

A will-maker can leave a spouse or child out of a will, but the spouse or child has the option of bringing a wills variation claim challenging the fairness of their disinheritance. It is also common for siblings who are treated unequally to challenge the fairness of their parent’s will.

The Supreme Court will consider several factors, including financial circumstances, family circumstances, and what a “reasonable will-maker” would be expected to do in a similar situation, and then change the distribution of assets in the will if it fails to make adequate provision.

When it comes to a disinherited child or child who receives less than their siblings, for example, the Court will consider factors such as the quality of the relationship between the child and the parent, whether there has been estrangement, and whether there has been misconduct on the part of the child.

Can a Will Be Changed After Death?

So long as they have the requisite mental capacity, a will-maker is free to change their will at any point prior to their death. Once the will-maker has died, only the courts have the power to change the will.

For example, the Supreme Court can change a will to impose an alternative distribution of the estate assets that meets the deceased’s legal obligation and/or moral obligation to the will-maker’s surviving spouse or child. The Supreme Court also has the power to cure deficiencies in a will or rectify errors, and when called upon, the court’s interpretation of the will can be used to construe unclear/ambiguous terms in a will.

What Is the Cost of Contesting a Will

Before you head for the courthouse, you want to know if it’s worth it. Estate litigation can be costly. The average cost to contest a will in BC ranges significantly depending on the unique circumstances of your case and several other factors. When your claim is successful, you are likely to be awarded your legal costs, to be paid out of the estate. This offsets or reimburses you for at least some of the legal fees you incurred to contest the will.

How To Avoid Will Disputes

How To Avoid Will Disputes

Proper estate planning is the best way to avoid will disputes. A comprehensive estate plan that clearly articulates a person’s wishes, that is updated regularly, and that is prepared with the assistance of an experienced estate lawyer goes a long way toward reducing the potential for legal challenges. The importance of a good estate plan and trustworthy legal advice is particularly important if you are in a second marriage, in a blended family with stepchildren, have minor children or disabled beneficiaries, own a business, want to disinherit a family member, or want to use trusts to protect assets or provide for loved ones.

Have Questions About Who Can Contest a Will?

The emotional stress of undertaking legal action after a loved one’s death is compounded when the issues at stake are deeply personal and involve close family members. Even if you aren’t the spouse or child of the deceased, you might still have legal standing to contest a will if you have interest in the estate or are the estate trustee, which is why it is crucial to know what your rights are.

If you want to know more about your legal rights to contest an unfair will or how to resolve a dispute relating to a deceased’s estate, we welcome you to reach out to our family and estate lawyers in New Westminster to schedule a free 30-minute consultation. You can discuss your matter with a passionate and knowledgeable lawyer who can advise you on the best steps forward.

Have questions about a topic?

Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
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