Contesting a will in British Columbia

A last will details the final wishes of a person upon their death. This explains exactly how they want their assets to be distributed to beneficiaries. In British Columbia though, the will can be contested based on several grounds. 

In this article, we’ll talk about contesting a will in British Columbia and exactly how the law handles will dispute among concerned parties.  

What does contesting a will mean in British Columbia? 

Contesting a will in British Columbia means questioning the validity of the will. The contest could either be on the will overall or specific provisions only. In either case though, contesting a will means filing a case in court with the help of an experienced lawyer who practices within the area. 

To preface, last wills and testaments in British Columbia are governed by the Wills, Estates, and Succession Act (WESA).  

Reasons for contesting a will in British Columbia 

Contesting a will in B.C. can be done based on several grounds. This includes the existing circumstances at the time of the execution of the will or the state of mind of the person who executed the will.  

“It may be argued that the will-maker did not have testamentary capacity, was unduly influenced, or did not have knowledge of and did not approve the contents of the will," explains James Zaitsoff, estate and trust litigation lawyer at Legacy Tax + Trust Lawyers. 

To clarify, the following are grounds for contesting a will: 

• Lack of testamentary capacity – this ground is present if the will-maker was of unsound mind when the will was signed, so that they are not fully aware of what they are agreeing to at the time of execution 

• Undue influence – this occurs if persistent and irresistible influence is exerted on the will-maker, making them sign the will. This is usually present in cases where the person making them sign is someone with power over them such as a nurse, a doctor, etc. 

• Fraud or forgery – this happens when the signature on the will is forged, or the will itself is fraudulent in its entirety. If this is the case, the will is completely invalid and an earlier will, if any, will be followed 

• Improper execution – this is when the formal requirements are not fully complied with such as the witnesses or the notarial requirements 

Finally, a spouse or a child of the will-maker can seek to vary the will on the basis that the will does not make adequate, just, and equitable provision for them. The court has wide discretion to order a variation based on a consideration of all of the circumstances, explains Zaitsoff. 

Wills variation claim 

A will variation claim is unique to British Columbia. Other than inequitable provision to the spouse and children, the will may also be varied based on: 

• before death, the will-maker made promises 

• reasons why the will-maker disinherited surviving children or spouse 

• the circumstances which caused the estrangement of the will-maker with their children or spouse 

• the relationship and responsibilities of the will-maker towards the children and the spouse 

• the extent of support given by the will-maker during his lifetime 

• the extent of dependence the children and spouse have on the will-maker 

• financial needs of the child and spouse 

• any gifts or benefits given by the will-maker to people outside of the will before and after death 

• contributions or shares given by the spouse and children to the person who made the will 

• total value of the asset 

The judge will weigh all these factors together when resolving a variation of will dispute. Ultimately, the goal is to ensure that the spouse and children will get their fair share, considering all circumstances surrounding the relationship. 

Major changes in contesting a will 

Zaitsoff explains that one of the major changes in the Wills, Estates, and Successions Act is Section 58. This “allows the court to cure deficiencies, and order that a document represents the testamentary intentions of a person, even though it does not meet the formal requirements of a will.” 

The impact of this change is that courts can now “admit a variety of documents which do not meet the requirements of a formal will," he adds. 

Procedure for contesting a will in British Columbia 

As mentioned, contesting a will requires filing in court. It doesn’t start there though. As with any case, everything starts with a consultation. Here’s an overview of contesting a will in British Columbia: 

Who can contest a will? 

Contesting a will in British Columbia requires legal standing. This is a legal concept which refers to people who may benefit or be damaged by the operation of the will. Commonly, these are the surviving spouse and any children of the deceased. It could also be next of kins such as parents, brothers, and sisters. 

Beneficiaries who are not relatives of the deceased may also have legal standing. This is especially so if they were beneficiaries of an older will which has been replaced by a new one. Their legal standing stems from the fact that they were beneficiaries of an old will but were removed in the most recent one made by the testator. 

There have been instances when even neighbours of the deceased tried to contest a will. Note though that legal standing does not always equal success when contesting a will in BC. Instead, it simply means that the person can file a dispute in court. Decisions are still subject to available grounds and the weight of evidence. 

Timeliness of filing 

An action for contesting a will must be filed as soon as reasonable by the person causing the dispute. Any challenge must be filed within two years counted from the date of discovery of the grounds. The clock also starts from the time the person should have known that the ground for contest exists. 

An exception is for will variation claims. These are when the spouse or children of the will-maker contest the will because it does not provide adequate provision for them. For this, the time to act must be within 180 days counting from the grant of probate. Failure to file during this period means losing the right to contest the will based on this ground. 

Here’s an overview of how the probate process works. Its conclusion opens the doors for a dispute based on will variation claims: 

Consultation with an estate attorney 

Consultation with an estate attorney practicing in British Columbia is the next logical step. The lawyer can assess the facts of the dispute and offer their legal opinion on the strength of the case. They’re also the ones who will be able to tell if the dispute is being filed in a timely manner. 

Make sure to prepare for the consultation by asking questions that will shed more light on the matter. This can include asking about the strength of the case, the documents necessary to prove your claim, costs, and even duration. These are matters that the best estate and personal tax planning attorneys in British Columbia can easily answer. 

An important question to ask would be the period of case build up. This is the time it takes for the lawyer to prepare the pleading together with all the evidence. For will variation claims, the pleading must be filed within the 180-period. 

Filing and notifying the executor 

Once ready, the pleading may be filed in court, and the executor is notified of the challenge. Informing the executor is critical because they are tasked to distribute the assets according to the will. Notifying them immediately stops the distribution process and gives the parties time to properly allocate assets. 

Mediation or alternative dispute resolution 

British Columbia has a “notice to mediate” process which allows parties to talk about the dispute before proceeding to trial. The hope is that parties enter a compromise so that there’s no need to undergo a full-blown trial that can eat up court resources. It can happen 60 days after the defence files a pleading and 120 days before trial. 

Parties who voluntarily agree to mediation do not need a formal notice to mediate. Instead, they can privately mediate among themselves and simply submit their preferred compromise to the court.  

Here’s some helpful tips that could help suspend final distribution of assets in case of disputes: 

Want more information about will disputes in Canada? Subscribe and visit our legal FAQ page to get updates about recent changes when contesting a will in Canada. 

Trial proper and decision 

If mediation does not lead to a compromise agreement, the dispute continues to trial proper. This is the stage where opposing parties present their statements and evidence to persuade the court. The trial proper can take months to resolve, depending on the court’s availability. The decision comes after resolving any and all issues put forward by the parties. 

Do people usually win when they contest a will? 

It depends. Generally, the court respects the contents of the will because it is, after all, the last wishes of the deceased. The presumption is in favour of the validity of the will. This is only defeated by strong evidence showing that there are sufficient grounds to allow the dispute. 

Contesting a will in British Columbia can have several outcomes. Depending on the grounds, here’s what to expect upon filing a dispute: 

• The will could be declared invalid if there’s no testamentary capacity, if there’s fraud, forgery, or failure to meet formal requirements. In these cases, the estate of the deceased will be distributed according to the rules on intestacy 

• If variation of will is filed, then only certain provisions of the will may be changed. This means that there will be a simple redistribution of the assets to properly allocation spouses, children, or other beneficiaries 

There’s also the possibility that the will and its provisions are declared valid. In these cases, the executor will distribute the assets exactly as described in the document. 

What to do after a loss when contesting a will in British Columbia? 

Appeal is possible in case the court’s decision does not meet your expectations. An appeal can be made within 30 days of receipt of the decision. Note though that the appeal must be made on valid grounds such as misapplication of the law or legal errors. Keep in mind that an appeal does not guarantee success and would still depend on the merits of the case. 

Getting help when contesting a will 

Ultimately, contesting a will in British Columbia follows precise steps that necessitate the input of an experienced lawyer. With sufficient grounds and armed with the right evidence, beneficiaries or supposed beneficiaries can contest the provisions of the will before any distribution is made. 

Want to find out more about how to initiate a will dispute? Look through our Lexpert-ranked best personal tax planning and estate lawyers in Canada and get targeted guidance on the topic.