In certain situations it may be appropriate to dispute a will. There are 3 main grounds to challenge a will.
1. You wish to vary the will
Under the Wills Estate Succession Act (WESA) spouses and children may bring an application to vary a valid will. If a will fails to make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may order a provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children. To determine what is fair the court may consider many factors including:
- the value of the estate;
- the financial circumstances of the will-maker;
- the financial circumstances of the applicant;
- the financial circumstances of other beneficiaries; and
- the length and nature of the relationship between the will-maker and applicant.
To qualify as a ‘spouse’ you must be:
- married to the will-maker, or
- co-habited with the will-maker in a marriage-like relationship for at least two years.
All claims to vary the will must be made within 180 days from the date the representation grant is issued in British Columbia.
2. The will was made under undue influence
A will may be challenged on the grounds that it was made under undue influence and therefore the will-maker was not acting freely and independently when making the will. Under WESA, once a challenger alleges undue influence and demonstrates that the will-maker was in a relationship of potential dependency or domination the onus shifts to the party seeking to uphold the will to show that there was no undue influence.
3. The will-maker lacked testamentary capacity to make the will
In order for a will to be legally valid the will-maker must have possessed testamentary capacity when making the will. If a party can demonstrate that the will-maker lacked the requisite capacity, the will may be found to be invalid. To have capacity the will-maker must:
- understand the will is disposing of their property effective on death;
- be free of mental disorders that would affect the above; and
- aged 16 years old or older.
In determining the testamentary capacity of the will-maker, below are some of the factors the courts will consider:
- did the will-maker understand and deal with his or her financial affairs?
- did the will-maker understand the value and size of their estate assets?
- was the will-maker aware of their dependents and family obligations?
- did the will-maker understand the nature of the document and its dispositions of his or her property after death?
- Did the will-maker give reasons for the dispositions made in the will?
Even in cases where the will-maker generally has mental capacity they may not be aware of what is in the will. The will-maker must have known and approved of the contents of the will upon signing for it to be valid.
Further information on Trusts and Estate Law .
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.