As a lawyer practicing in British Columbia, I often encounter individuals who feel they have been unfairly excluded or treated unequally in a loved one’s will. Contesting a will can be a complex and emotional process, but the law in British Columbia provides avenues for those who believe a will does not reflect the true intentions of the deceased or is otherwise invalid.
In this post, we’ll explore:
- Grounds for Contesting a Will
- Time Limits for Filing a Challenge
- The Role of the Wills, Estates and Succession Act (WESA)
- Examples of Real-Life Will Disputes and Resolutions
Grounds for Contesting a Will
To successfully challenge a will in British Columbia, you must have valid legal grounds. The most common reasons include:
1. Undue Influence
A will may be contested if the testator (the person who made the will) was pressured or coerced into making decisions they would not have otherwise made. Undue influence often arises in situations where one individual, such as a family member or caregiver, exercises significant control over the testator.
Example: A daughter believes her sibling manipulated their elderly mother into leaving the majority of the estate to him. If evidence shows coercion or intimidation, the will may be invalidated.
2. Lack of Testamentary Capacity
A testator must have the mental capacity to understand the nature of their assets, the people who have a moral claim to their estate, and the impact of their decisions. If the testator lacked capacity due to illness, dementia, or another condition, the will may be challenged.
Example: An elderly man drafted a will while in the advanced stages of Alzheimer’s. His grandchildren successfully contested the will by proving he could not understand his decisions.
3. Improper Execution
In British Columbia, wills must meet specific legal requirements under WESA to be valid. For example, a will must generally be in writing, signed by the testator, and witnessed by two people who are not beneficiaries. Failure to meet these requirements can render a will invalid.
Example: A handwritten will was signed but not witnessed. The court found it did not comply with WESA and was therefore invalid.
4. Unfair Distribution
Under WESA, children and spouses have a legal right to a fair share of an estate. If the will does not adequately provide for these individuals, they can bring a claim to vary the will.
Example: A son was left out of his father’s will, despite having a close relationship. He successfully argued in court that the father had a legal obligation to provide for him.
Time Limits for Filing a Challenge
Strict time limits apply to contesting a will in British Columbia, so it’s important to act quickly.
- For wills variation claims: Spouses and children must file their claim within 180 days of the grant of probate.
- For other challenges (e.g., undue influence or lack of capacity): While there is no fixed deadline, claims should be brought as soon as possible to avoid being barred by principles such as laches (unreasonable delay).
Missing these deadlines can significantly impact your ability to challenge a will, so consult a lawyer as soon as possible if you believe you have a claim.
The Role of the Wills, Estates and Succession Act (WESA)
WESA is the key legislation governing wills and estates in British Columbia. It provides:
- Rules for valid wills: Including requirements for execution and witnessing.
- Protections for spouses and children: Allowing them to challenge unfair distributions.
- Guidance for courts: On resolving disputes and interpreting ambiguous wills.
One of WESA’s unique features is its emphasis on fairness. Unlike some other jurisdictions, BC courts have significant discretion to vary wills that do not provide adequately for spouses or children.
Real-Life Examples of Will Disputes
1. Unequal Treatment of Daughters
In a well-known BC case, a father left the majority of his estate to his sons, excluding his daughters due to cultural traditions. The daughters challenged the will, and the court found that cultural norms did not excuse the father’s legal obligation to treat all children fairly. The will was varied to provide the daughters with a more equitable share.
2. Caregiver Undue Influence
An elderly woman changed her will to leave everything to her live-in caregiver, cutting out her children. The children successfully argued undue influence, presenting evidence that the caregiver isolated their mother and manipulated her decisions. The court reinstated a previous will.
3. Failure to Update the Will
A man who remarried failed to update his will, which left everything to his first spouse. His second wife challenged the will under WESA, claiming she was entitled to a share as his legal spouse. The court ruled in her favour, citing the legal obligation to provide for her.
Key Takeaways
- Understand your rights: Spouses and children in BC have strong legal protections under WESA.
- Act quickly: Time limits for contesting a will are strict, especially for wills variation claims.
- Seek legal advice: Contesting a will is a complex process, and professional guidance is essential.
If you feel you’ve been unfairly treated in a will, don’t wait to take action. Consulting an experienced lawyer can help you understand your rights and determine the best course of action.
For more information or to discuss your situation, visit our Estate Litigation page or reach out to our team at ALG Lawyers, serving Abbottsford and Greater Vancouver BC.
Disclaimer: This post is for informational purposes only and does not constitute legal advice. Please consult a lawyer for advice specific to your situation.