In Canada, only certain individuals have the legal right to challenge a will. Typically, this includes spouses, children (biological and adopted, but not stepchildren), beneficiaries named in the will, beneficiaries from a previous will, and individuals who would inherit under intestacy laws if the will were deemed invalid.
The ability to contest a will depends on the legal standing of the person bringing the challenge and the grounds for contestation. For example, spouses and children in British Columbia can file a wills variation claim under the Wills, Estates, and Succession Act (WESA) if they believe they were unfairly disinherited. Others, such as extended family members or creditors, may challenge a will if they can prove fraud, undue influence, lack of testamentary capacity, or improper execution.
Understanding who has the right to contest a will is only the first step. If you believe you have a valid claim, It is important that you consult an estate lawyer as soon as possible, because strict time limits apply.
At Onyx Law Group, we specialize in estate litigation, helping individuals and families in British Columbia tackle contested wills with confidence. Our legal team has decades of experience handling high-stakes estate disputes, including cases involving undue influence, lack of capacity, and unjust disinheritance under WESA. We have successfully represented spouses, children, and beneficiaries seeking fair resolutions, maximizing settlement value, and ensuring that justice is served. So, contact us today for your free consultation!
In this blog post, we’ll have a look at legal grounds for contesting a will and who can contest a will in Canada.
Who Can Contest a Will in Canada?
According to Canadian Law, those who can contest a will include: the spouse, children (biological and adopted), beneficiaries named in the will, and beneficiaries named in a previous will. In the same vein, individuals who would inherit under intestacy laws if the will were deemed invalid can also contest.
Under British Columbia Law, “Spouse” means a legally married spouse and a common-law spouse. That means a spouse is not only someone who was married to the deceased or testator. It also includes those who lived with the deceased for at least two years and were in a marriage-like relationship. Also, “Child” means a biological child or adopted child of the deceased but does not include a deceased person’s stepchild. In addition, during court proceedings, the one contesting a will is called the “plaintiff.”
There are certain grounds on which you can contest a will. But before we cover that, let’s look at what wills variation claim means and the provision offered to you by law to contest a will that is deemed unfair.
Wills Variation Claim
Section 60 of the WESA, allows a spouse or a child of the deceased 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 states 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.
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. However, 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 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 an 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 legally valid will (“died intestate”).
On What Grounds Can You Contest a Will?
There are specific grounds or reasons for a will to be contested and they are provided by the Wills, Estate, and Succession Act. So, if a will violates the provisions of these laws, you can contest it. The grounds for contesting a will include:
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 legal, not medical.
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 standing, you must be able to provide evidence to support your case, and you must also be eligible to contest the will.
How Easy Is It to Contest a Will in Canada?
Contesting a will in Canada isn’t easy, but it’s possible if you have a strong legal basis and meet the eligibility requirements. The court won’t overturn a will just because someone feels it’s unfair, it must be legally invalid for specific reasons.
The process requires gathering evidence, filing legal documents, and potentially going to court. In British Columbia, for example, you must prove that the will-maker lacked mental capacity, was unduly influenced, or that the will was improperly executed. If you’re a spouse or child, you may also challenge the will under WESA if you were unfairly disinherited.
Each province has its own estate laws and deadlines, so timing is important. If you believe you have a valid claim, consulting an estate lawyer early is the best way to assess your chances of success.
How to Contest a Will in Canada
Contesting a will in Canada 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:
- 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).
- Ensure you have standing to bring that legal action – Having ‘standing’ means you have the legal right to challenge the will. In British Columbia, you must be either a spouse, a child (including legally adopted children), a beneficiary named in the will, or someone named in a previous will. In other words, without proper standing, the court will not hear your challenge, regardless of how strong your evidence may be.
- 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.
- Consult with a lawyer – It is recommended that you consult with an estate lawyer who is experienced in contesting wills in British Columbia. At Onyx Law Group, our team of highly experienced lawyers can advise you on the strength of your claim, the evidence you will need, and the best legal strategy for your case. We will provide strong legal representation and explain the legal costs you can expect. So, schedule a free consultation with us today.
- 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.
- Attend court – You will need to attend court to present your case. It is important that you don’t fail to provide evidence to support your claim and cross-examine any witnesses called by the executor of the estate. Remember that you are better off with your lawyer compared to when you are alone. So, let them do the cross-examination as they are more experienced than you are and can ask the right questions.
- 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.
Can a Sibling Contest a Will if Left Out?
Yes, but only under specific circumstances. Unlike spouses and children, siblings don’t have an automatic right to contest a will just because they were left out. However, they can challenge it on legal grounds such as lack of testamentary capacity, undue influence, fraud, or improper execution.
If the will is declared invalid, an earlier version may take effect, or the estate could be distributed under intestacy laws. If you suspect something is wrong, gathering evidence and seeking legal advice quickly is key.
Can You Leave a Child Out of Your Will in Canada?
In most provinces, yes, you can disinherit an adult child if you choose. However, British Columbia is the major exception. Under section 60 of WESA, children, including adult children, can challenge a will if they were unfairly left out or received inadequate support. The court will weigh whether the will-maker had a moral and legal obligation to provide for them.
In other provinces, disinheriting a child is generally allowed, but it can still be challenged under certain conditions. One condition is if the child was financially dependent on the deceased. Another reason is if there’s evidence of undue influence or fraud, and finally if the will’s language is ambiguous.
To minimize disputes, it’s wise to clearly document your reasons for disinheriting a child and consult an estate lawyer when drafting your will.
How Long Do You Have to Contest a Will in Canada?
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 Canadian Supreme Court issues a grant of probate.
In Canada, 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 Canada, 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 Canada?
In Canada, only certain individuals, such as spouses, children, beneficiaries, and those with a financial interest in the estate, can contest a will, and they must have valid legal grounds to do so. Common reasons for challenging a will include lack of testamentary capacity, undue influence, fraud, improper execution, or unfair distribution under British Columbia’s Wills, Estates, and Succession Act (WESA).
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 Canada. 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.