Challenging A Will

Laws surrounding when and how a will may be challenged vary across Canada. In British Columbia, the validity of a will may be challenged where:

• It does not meet the formal requirements of a will under Division 6 of Part 4 of the Wills, Estates and Succession Act (although the court does have remedial powers to recognize wills which are not in compliance;)
• The will-maker lacked the proper mental capacity when the will was made; or
• The will-maker was unduely influenced by another in the making of the will. (Gifts made prior to the testator’s death may also be challenged on these grounds).

A will may also be challenged by spouses and children who consider that adequate provision has not been made for them in the will. The court has the power to vary the will where it considers that the claimant has not been treated fairly.

Challenges based on validity, capacity, or on undue influence are called “probate proceedings.” When successful, the will is declared invalid, and either an earlier will or the intestacy will apply to the distribution of the deceased’s estate. Challenges based on a perceived unfairness in a will are usually referred to as ‘wills variation claims’. When successful, the testamentary wishes of the will-maker are altered.

A court considers many factors in deciding probate. There are also legal and evidentiary presumptions which come into play. For example, there is a presumption that a testator has mental capacity when his will is signed and witnessed in a certain fashion. In some cases, the person who seeks to uphold the will as valid will need to provide evidence, and in other challenges the burden of evidence will be on the persons who believe the will should not be upheld. The death of a parent or spouse is a very emotional time for the whole family, even in cases of where there has been no estrangement. Accordingly, it may be difficult for you to assess whether you should challenge the validity of a will or bring a wills variation claim. If you are involved in a situation where a loved one has left a will which you believe may not be valid or fair, may not reflect the testator’s true intentions, or if the estate’s assets are markedly less than the will-maker led you to believe, you will need the advice of an experienced lawyer.

Horne Coupar LLP’s litigation team is very well-experienced in both challenging and defending wills. One of our estate litigation team will be able to assist you in weighing out your options, and provide you with an opinion on the likelihood of success in a probate or wills variation proceeding