A will-maker in British Columbia has the freedom to choose who will receive their personal property after they pass away. However, legal disputes often result during the estate administration. Beneficiaries who are unhappy with the terms of the will may argue the will was improperly executed and is void. Disinherited spouses or children may argue the will should be changed to provide them with a proper inheritance.
Large estates, often due to increased property values in the lower mainland, can cause divisions among families and litigation over how much each beneficiary should receive. Legal disputes over a person’s estate need to be handled with expertise and sensitivity.
Contesting a Will
Wills can be challenged in a number of ways, including:
- The will was improperly commissioned, meaning it was not signed or witnessed correctly.
- There was undue influence, fraud, or coercion on the will-maker
- Where there are concerns about dementia or similar illnesses, the will-maker did not have had the capacity to make a will.
WESA contains specific provisions about how a will must be executed. Two witnesses who are not beneficiaries, must be present when the will-maker signs the will. Problems arise where a will is not signed by two independent witnesses. However, under WESA judges do have the power to “cure” a will which is improperly commissioned.
Undue influence is a major cause of will challenges and can be a stressor for those worried about the validity of a will. Knowing that a loved one's true intentions may not be respected because of another person's self-interest is a difficult realization.
A will-maker’s capacity is often in dispute where the will-maker was elderly or suffering from a mental illness such as dementia or Alzheimer's. The will-maker must know that they are making a will, understand the terms of the will, and intend to leave their property in the ways set out in the will. Cases on a will-maker’s capacity often involve medical evidence from family doctors or independent experts.
Even where the will is properly executed and according to the will-maker’s wishes, spouses and children in British Columbia can apply to “vary” a will. While a testator can disinherit his or her children and spouse, the Wills, Estates and Succession Act (WESA) gives them the right to ask for a variance of the terms of the will. The law in British Columbia is that will-makers have a moral responsibility to write a will that ensures there is proper maintenance and support for close family members. Therefore, WESA allows a spouse or a child to challenge the terms of a will if they believe they were treated unfairly.
Courts will examine a number of factors to determine what proper provisions means for a spouse or a child. Those factors can include the size of the estate, the relationship between the will-maker and the disinherited person, and the disinherited person’s finances. WESA allows a court to change a will to do justice between the parties and ensure that children and spouses receive “adequate provision” from the deceased.
Will variation claims often put family members in an adversarial position. While one family member seeks to change the terms of a will, the others seek to uphold the will-makers intentions. If improperly handled, these cans can cause permanent divisions between family members. It is usually best to have a legal representative represent you in these matters.
Estate Lawyer In Your Corner
The lawyers at Westside Family Law have guided clients through complex estate litigation matters for over three decades. We can provide you with knowledgeable, efficient representation. Fill out the contact form below to set up a consultation with a lawyer, or call us at 604-734-7911 to get started.