BC Estate Litigation,

WHEN TO DISPUTE A WILL

Courtney AuBuchon

Even when someone dies with an legal Will, there can be a variety of reasons for it to be challenged. These issues can be roughly divided into two groups:issues regarding the preparation of the Will ("validity"), and issues regarding the inadequacy of the gifts provided in the Will ("fairness").

Validity Concerns

A Will that appears to be valid may be challenged if there is evidence to suggest that it does not reflect the wishes of the will-maker. A Will may be deemed invalid if a court determines that the will-maker was forced or tricked into making it. The court will look for evidence of undue influence or coercion when assessing whether or not a Will is valid. Whereas coercion requires an overt threat of harm, undue influence can be subtler and often arises in situations where the will-maker is dependent on another person to meeting his or her physical, emotional or financial needs.

A Will may also be challenged if the will-maker did not have the requisite mental capacity. If the will-maker doesn't have a basic understanding and they lack a "disposing memory"—knowledge of their assets, who might naturally benefit from their Will, and who might challenge the Will if they are cut out—then they lack the testamentary capacity required to validate the Will.

Claims of invalidity by way of undue influence or lack of mental capacity are not mutually exclusive; these elements are often found together in cases where a will-maker, suffering from dementia, makes a new Will at the request of the person who receives a benefit from the revisions. While such circumstances do not automatically invalidate a Will, it may be worth investigating the circumstances further to better understand why the new Will was created.

If the Will is found to be invalid, then a prior Will may govern the estate.  If there is no earlier Will, then the distribution of the estate will be dictated by the applicable legislation.

Presumption of Fairness

In British Columbia, a will-maker may have legal and moral obligations to provide for his or her spouse or children. Where a will-maker does not address these obligations, the Will is vulnerable to a legal challenge by a spouse or child. Under the law, people do not need to be married to be spouses, they only have to have lived in a marriage-like relationship for a period of at least two years. There is not a clear test for what a marriage-like relationship is, and it is rare that any one factor is determinative.

Just because a spouse or child has not been left anything in a Will does not mean that they will be able to convince a court to vary a Will. Often a will-maker will leave his or her spouse significant assets outside of the estate and a court will consider these transfers when determining whether the will should be varied. For example, land and financial assets are often transferred automatically using joint ownership. In many cases, most of a will maker’s assets transfer outside of the estate, and the estate is very modest by comparison.

If a person has received nothing from a spouse's estate, including through joint ownership or survivorship rights, it is very likely that a court will vary the Will. Independent adult children have a more tenuous claim to the estate but the courts have stated that they should be given a share when the size of the estate permits.

Time Limitations

The legislation has been drafted to allow executors to deal with estates in a timely fashion. Once probate has been granted, there is a narrow window of time to bring a claim against an estate. Often people are not aware of their rights and miss the timelines necessary to have a court intervene to sort out issues. If you believe that you may have a claim, you should contact a lawyer quickly to determine the timelines that apply in your situation.

If you believe you may have a claim against a loved one's estate, or have questions about estate law generally, please contact Courtney AuBuchon at 250-434-2333 or court@forwardlaw.ca.

This article is provided for general information only and does not constitute legal advice or opinion. For legal advice relating to wills disputes, or estate matters generally, please contact Courtney AuBuchon for an appointment. This article is current as of its original date of publication.



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