Challenge_wills

Challenging a Will in British Columbia

In British Columbia, the Last Will and Testament of a deceased may be challenged if there are doubts about its validity or fairness. Inheritance is a subject fraught with emotion for will makers and beneficiaries, especially when it comes to the allocation of assets. Sometimes feelings of unfair treatment can trigger disputes over the validity and fairness of a will. The Wills Estates and Succession Act (WESA) sets up ways in which a will may be challenged, and anyone thinking about changing or challenging a will in B.C. would do well to speak with legal counsel on the following:

 

Validity

Contesting a will for its validity is open to the executor and any person interested in obtaining a declaration as to the validity of the will. There are four primary ways that validity of a will can be contested in B.C., each of which relates to “suspicious circumstances.”

The first of these suspicious circumstances has to do with the formalities surrounding the preparation and execution of a will. Previously, failure to meet certain formalities was fatal to a will, now however, defective wills may be saved under WESA.

The second circumstance is where the will maker lacked the testamentary capacity to understand what was going on when they signed their will. This can be a complicated matter. Advanced age is often associated with diminished cognitive function, but there are varying degrees of mental capacity and there is no standard of perfection when it comes to determining what a person understands. Testamentary capacity requires that a will maker understand the nature and quality of the act in which he or she was engaged when they made their will, but this does not mean that a will maker must meet a stringent standard to be of sound and disposing mind and memory. In essence, what is required is an awareness of the effect of the will, and freedom from mental disorder.

The third way in which the validity of a will may be challenged is if the will maker did not know or approve of its contents.

Lastly, and perhaps the most contentious circumstance, is “undue influence”. The elderly can be vulnerable to coercion and fraud, particularly in situations of dominance and dependence. Traditionally, the burden of proving undue influence rested with the party challenging the will, and it was that party who had to prove coercion. Now however, under WESA, the party challenging a will must only establish that the alleged person of influence was in a position where there was potential for dependence or domination over the will maker and the onus of proof now shifts to the party being accused to prove that there was no undue influence.

 

Fairness

If a will is found to be valid, another way in which it may be challenged is on fairness. Unlike contesting the validity of a will, a claim to vary a will, due to fairness, is only open to the deceased’s spouse and children. Third parties and other family members do not possess the ability to make a claim to vary the will of a deceased.

The definition of “spouse” in WESA includes individuals who are legally married, or who have cohabitated for more than two years in a marriage-like relationship. It is important to note however that the definition of spouse is always changing, and courts will examine a variety of different factors to determine who qualifies. A recent B.C. Court of Appeal case affirmed a spousal relationship that existed between two partners late-in-life. Even though the couple had maintained separate residences, had kept separate finances, and demonstrated their intention to benefit their respective adult children from earlier marriages and not each other, the court upheld the decision to vary the deceased’s will in favour of his partner of 20-plus years. Conversely, a married individual can lose their entitlement to vary where the parties are separated, but not formally divorced. This is because the loss of status as a spouse happens upon separation, regardless of the duration of the marriage.

While WESA defines “spouse,” “children” are not formally defined, but the term does apply to both biological and adopted children. Neither grandchildren, stepchildren who have not been adopted, nor the will maker’s biological children who have been subsequently adopted have standing to challenge a will under WESA.

If the deceased’s spouse or children believe they have been unfairly provided for under the will then they may apply to have the will varied. Although a will maker is free to decide how he or she wishes to see their estate distributed and they have a right to how their wishes are carried out, will makers also have a legal obligation to make “adequate provision for the proper maintenance and support” of their spouse and children.

A question often asked is what can a will maker do if they are legally obligated to bequeath their estate to an estranged, abusive, or incorrigible spouse or child? In such cases, will makers can try to protect their will by including a supporting memorandum that explains their rationale for disinheritance. Such documents, however, are still reviewable, and although courts are generally reluctant to vary allocations where they fall within an acceptable range, they are still empowered to exercise their discretion if they think it is necessary to do what is just and equitable in the circumstances.

To avoid depleting the assets of an estate in order to fund litigation, will makers should be very clear about the content of their will. Individuals should consult an accountant and a lawyer about how to structure their estate to maximize the likelihood that their assets will pass as intended. It is also important that will makers are clear about where their will is located and what document or documents make up their will.

 

Natalia M. Velletta is an Articled Student at Velletta & Company. Before pursuing her passion for law, Natalia attended the University of Victoria where she obtained her undergraduate degree in Education. Natalia also worked for the Government of British Columbia under the Superintendent of Motor Vehicles.