If your spouse or parent has passed away and you are unsatisfied with what they left you in their Will, you can dispute their Will. You may feel that you are not getting your fair share. Or maybe they left you with nothing.
A will-maker is generally free to divide their property however they want. However, under British Columbia law, the Wills, Estates, and Success Act (WESA) allows the spouse or children of the deceased to dispute a Will if they feel the Will doesn’t “make an adequate provision for the proper maintenance and support” for them. This is called a Wills Variation Claim.
If you are a friend or relative, and not a spouse or child, you generally cannot make this type of claim. However, you do have some options to dispute the Will.
In B.C. you are a deceased person’s spouse if:
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:
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?
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:
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:
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:
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 if you were left out of your family’s Will, call us to learn about your rights.
Contact us for free legal advice.
We do not charge an hourly rate. We work on a contingency fee arrangement. This means we only get paid if we win, and we take a percentage of the amount we successfully recover for you. No win, no fee.
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.