The courts and government of British Columbia recognize the autonomy of individuals to leave their estate to the people they choose. With that being said, however, there are certain circumstances wherein it may be possible to contest the terms of a will being probated here in British Columbia.
There are three categories of heirs or potential heirs who may contest a will, providing other conditions exist. They are:
- the decedent’s legal spouse
- the common law spouse of the decedent
- children of the decedent (natural, adopted, minor or adult)
The further specifications of a will challenge are detailed in the Wills, Estates and Succession Act under Division 6, the Variation of Wills. Under WESA, testators must “adequately provide” for spouses and children, although such adequate provision isn’t defined by the statute. This means that the courts must look at the totality of the circumstances about the estate and the challenge to the decedent’s will. The estate’s value, the decedent’s largesse toward the children and spouse during his or her lifetime and their present needs, as well as their relationships with one another, can all factor into the court’s decision on whether or not to grant the challenge. There are also time constraints involved when challenging a will. Parties must make application to the Supreme Court of British Columbia within 180 days from when the will was probated.
There can be other grounds for contesting a will, such as if the testator was under the influence of another person who was manipulating or pressuring them to make or alter their will to benefit that person. Other potential grounds might be the testator lacked the capacity to execute his or her will. If you feel that you have a valid legal reason to challenge a will, it is advisable to seek legal guidance when proceeding.
Source: gov.bc.ca, “Wills & Estates,” accessed Sep. 09, 2016