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Who Can Contest a Will in Canada?


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  • Who Can Contest a Will in Canada?

You were disinherited or received less than you expected from a loved one’s estate. You are concerned about whether a family member’s Will is valid. You’re suspicious about how a deceased person’s Will came into being.

If you find yourself in any of those kinds of situations, you are likely feeling overwhelmed and wondering what you can do. There are ways to seek justice and ensure that a loved one’s final wishes are honored, and you do not have to navigate the process alone.

The team at Onyx Law Group has the experience and knowledge to help you explore your options and maximize settlement value for contested wills and trusts claims. Contact us today!

What many don’t realize is that only certain people have the right to contest a Will. In todays’ blog post, we’ll have a look at legal grounds for contesting a Will and who can contest a Will in Canada.

Grounds for Contesting a Will

Grounds for Contesting a Will

There are various legal strategies available if you wish to contest a Will in British Columbia, including:

Lack of Testamentary Capacity

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 evidence is 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 exerted undue influence on the Will maker (for example, 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 the Wills, Estates, and Succession Act. It must be written and signed by the will maker in the presence of two independent witnesses who also sign the Will. You can ask the Courts to invalidate a Will if it was improperly executed.

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 can interpret the Will to resolve the ambiguity.

Unfairness in the Will

In certain circumstances, you can ask the court to vary a Will in your favour if you were treated unfairly. This is known as a “wills variation claim” and it is provided for in s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”).

To have a successful challenge, you must have a valid legal action, you must be able to provide evidence to support your case, and you must also be eligible to contest the Will. Let’s delve into that last requirement a bit more.

Who is Eligible to Contest a Will in Canada?

Who is Eligible to Contest a Will in Canada?

We just looked at the common grounds to contest a Will. Next, it’s important to understand that the grounds for challenging 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”).

Wills Variation Claim

As discussed above, s. 60 of WESA allows a person to ask the court to vary the terms of the deceased’s Will on the basis that they were unjustly disinherited or didn’t receive adequate provision in all the circumstances. 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.

If the Wills variation claim succeeds, the court will impose an alternative distribution of the estate assets that meet the deceased’s legal obligation and/or moral obligation to the claimant. But here’s the catch: only the spouse or child of the Will maker can bring a Wills variation claim.

BC estate law says that a person must provide for their surviving spouse and children in a way that is “adequate, just or equitable.” There is no general requirement for a person to provide for friends, other types of relatives, charity, etc.

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 or adopted child of the deceased but does not include a deceased person’s stepchild.

Even adult children of the deceased can apply to vary their parent’s Will. Generally speaking, if the size of the estate permits, and in the absence of circumstances negating the existence of a moral obligation, some provision for adult children should be made, but 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 dependent for other reasons such as disability).

It will depend on several factors, including financial circumstances, family circumstances, and what a “reasonable will maker” would be expected to do in a similar situation.

Other Types of Challenges with Contesting a Will

Only the spouse or child of the Will maker can challenge an otherwise valid Will that leaves an unfair or inadequate inheritance. What if you aren’t the deceased’s spouse or child, or what if your concern arises from one of the other grounds for challenging a Will?

You can challenge the validity of a Will on the other specific grounds—lack of testamentary capacity; suspicion that the Will maker was unduly influenced; concern that the Will was not executed by two independent witnesses, etc.—even if you’re not a spouse, child, or immediate family member of the deceased. However, you must have an interest in the estate to do so.

So, you would be eligible to contest a Will if you have a interest in the estate as a beneficiary named in the most recent Will, as a beneficiary named in previous Wills, 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).

If your Will challenge is successful, the Will or parts of the Will are deemed invalid by the court. The will maker’s next most recent valid Will is used. It will govern how the estate is distributed. If there is no prior Will, the rules of intestacy determine how the estate must be distributed—in other words, the deceased estate will be divided according to the rules that apply when a person dies without a valid Will (“died intestate”).

What is the Process for Contesting a Will?

What is the Process for Contesting a Will?

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. Here are the general steps to contest a Will in British Columbia:

  1. Understand the viable grounds for contesting the Will: In British Columbia, the grounds for contesting a Will are limited to the reasons set out above (e.g., lack of capacity, undue influence, fraud or forgery, or non-compliance with formal requirements). Do you have reasonable grounds?
  2. Ensure you have standing to bring that legal action: Are you eligible to bring the Will challenge in court?
  3. Gather evidence: Gather all relevant documents and evidence, such as medical records, bank statements, and any other documents that may be relevant to your claim. For example, if you suspect undue influence, try to find evidence of the relationship between the deceased person and the person who unduly influenced the deceased.
  4. Consult with a lawyer: It is recommended that you consult with an estate lawyer who is experienced in contesting Wills in British Columbia. A lawyer can advise you on the strength of your claim, the evidence you will need, and the best legal strategy for your case. Your lawyer will provide strong legal representation and explain the legal costs you can expect.
  5. File a Wills variation claim or other claim contesting the Will: Once you have a strong case, you will need to file a Wills variation claim or other claim contesting the Will with the Supreme Court of British Columbia. This starts the legal process and provides the estate trustee (executor of the estate) with notice that the Will is being contested.
  6. Attend court: You will need to attend court to present your case. You will need to provide evidence to support your claim and cross-examine any witnesses called by the executor of the estate.
  7. Be prepared for the outcome: Even if you have a strong case, there is no guarantee that you will win. The court will consider all the evidence presented and make a decision based on the law and the facts of the case.

What is the Time Frame for Contesting a Will in BC?

What is the Time Frame 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.

In British Columbia, most challenges happen after the Will has entered probate.

That being said, you can contest a Will either before or after the estate trustee has started the probate process. If you think you want to contest a Will in BC, the best course of action is to seek legal advice from an estate lawyer as soon as possible 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. If you are considering contesting a Will in BC, contact an estate lawyer at our firm today for clear advice and a legal opinion on whether you have the grounds for a successful challenge.

Our estate planning and estate litigation lawyers seek equitable solutions for you, and we stand by you through the process.

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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