In B.C. you are a deceased person’s spouse if: 

• You were married at the time of death, or;
• Prior to their death, you were living together in a marriage like relationship for at least two years.

Children can be adults or minors.

You can dispute a Will and make a Wills Variation Claim if you are the biological child or if you were legally adopted.

You cannot make a claim if you are a step child. You also cannot make a claim if you are a biological child but someone else adopted you. 

Only the spouse or children of the will-maker can dispute a valid Will with a Wills Variation Claim. However, there are other reasons why someone might want to contest the distribution of deceased’s estate. If you have an interest in the estate, you can contest the Will on the following grounds:

• The will-maker was not mentally capable when making the Will.
• Someone pressured or influenced the will-maker.
• There was an error or mistake in the Will. For example, the will-maker gifted something by mistake when they didn’t intend to do so. The mistake might be due to fraud, or it was accidental. The law in BC gives the court powers to fix such a mistake in a Will.
• The will-maker cancelled or revoked their Will.
• The language in the Will is uncertain or vague.
• The will-maker failed to provide for someone in their will. For example, a close friend that contributed financially to the deceased House, but the close friend was not on title for the House. Or, a friend that working in the will-makers business to help it grow with limited pay. These people may expect that because they enriched the deceased’s life they should be provided for in the deceased’s Will. They may have a constructive trust claim or unjust enrichment claim.

If you believe that the will-maker did not have the mental capacity to make a will, you can dispute this in court. This situation is more common when Wills made in later life/at an older age, or if the will-maker had an illness that might impair their capacity to make decisions.

People that are mentally ill can still make valid wills. However, they must have testamentary capacity. What is testamentary capacity?

• They must understand that they are making a Will.
• They must understand that the Will determines what happens to their property after death.
• They must recognize the nature and value of all property they own, including what they are giving away in terms of inheritance.
• They must understand who their next of kin are and recognize that they should provide for their spouse and children on their own accord whenever possible and not unfairly disinherit them. 

If the court finds that the will-maker didn’t have mental capacity when the will was made, it can rule that the will is invalid. In such circumstances, if the will-maker:

• had no previous Will, their estate/property will be divided according to British Columbia law (WESA section 20 – Distribution of Estate When There is No Will).
• had another will, the last valid will that they made when they were still able to make a will applies.

If the will-maker has something in writing that they created when they were mentally capable about how their property should be treated, the court can consider this to learn about their intentions. This can allow for documents such as emails, letters, and text messages to have validity similar to a Will.

Unreasonable terms or wording in a will can raise suspicions that the will-maker was under pressure, coercion, or influence to make the Will a certain way. Courts will not allow any gifts or inheritances made as a result of undue influence on the will-maker. In such cases, the Will is not considered to reflect the true wishes of the will-maker.

Most people have some level of influence over their loved ones. It is not illegal to suggest that someone remembers you in a Will. But if, for example, you threaten to stop caring for them unless they relinquish most of their property to you, that is undue influence. Also, you can’t:

• Threaten or use of force, or violence.
• Persuade the will-maker during final days before death.
• Exhaust them until they agree with you.
• Isolate them.
• Speak poorly about your siblings in order to get your parent to disinherit them.

Courts can revoke wills that appear to have been made under undue influence or coercion. If it’s proven that a person was in a position where they persuaded or influenced a will-maker, a Court can cancel the Will. The person accused of influencing a will-maker will have to prove they didn’t influence the will-maker.

There is a statute of limitations that must be adhered to in order to dispute a Will. If you miss the deadline, it may be too late. If you want to make a claim, you should contact our office for a free consultation immediately.

A Wills Variation Claim must be made within 180 days from the date of the grant of probate or administration is issued by the probate registry. The grant verifies that the Will is valid and enforceable.

If Wills Dispute claim is filed more than 180 days after the grant is issued, the claim may be expired.

If you are considering challenging the validity of a will on the grounds of mental incapacity or undue influence, there is usually a two-year statute of limitations on your claim. This means that you must initiate legal action within two years from the date you learned about, or should reasonably have known, that there was a claim. 

If you are disputing a Will, the court may decide to amend the Will if it deems it appropriate in the particular circumstances. The court will consider the following:

• Why the will-maker distributed their assets the way they did.
• The value of the money and property.
• Your financial situation.
• The financial situation of the other beneficiaries.
• Your relationship with the will-maker.
• If you were financially dependent on the will-maker.
• Assets that may be passing to you or others outside of the Will (i.e. life insurance policy money, other benefits etc).
• Gifts made to you or others during the time the will-maker was alive.

The Court considers what a reasonable will-maker would have done.

If a will reflects unreasonable anger or favoritism, or fails to meet the real needs of the will-maker’s spouse or children without good reason, courts can amend the Will to make it Fair. A Court can order that the Will be amended in favor of a spouse or children that is “adequate, just and equitable”.

Courts have generally held that there is a moral obligation to provide for independent adult children when there are assets/wealth. However, there are cases where the will-maker has justifiable and reasonable grounds for disinheriting adult children (i.e. if children were estranged from will-maker, or if they cut the will maker off and did not have a relationship with them etc).In such cases, the court can say the will-maker owed no obligation to their adult children.

If an adult child with a disability is not listed in the will, the court can find that the will-maker had a moral and legal obligation to care for the adult disabled child. In some cases, such children may be excluded from the estate for legitimate reasons, such as fear that money will reduce or eliminate welfare benefits for adult children.

If you are an adult child of the deceased and you were disinherited, call us for a free consultation.

We have successfully disputed many Wills in B.C., and have helped our clients get a fair inheritance. If you were treated unfairly or unequally, or if you were left out of your family’s Will, call us to learn about your rights.

Contact us for free legal advice.

We work on a contingency fee arrangement. This means that we take a percentage of the amount you receive from the estate as a result of a successful challenge. With this type of arrangement, we will only charge you legal fees if we win the case.

Many cases settle out of Court, either through settlement negotiations or mediation, however, if required we have the Court experience and are equipped to fight your Wills Dispute case in Court to get you what is fair.