If your biological or legally adopted parent(s) passed away and you are disappointed with the contents of their will, you can challenge the terms in court. If you doubt that it reflects the deceased’s true intentions or question its fairness or validity, you can file a wills variation claim.
A wills variation claim is a request to evaluate and possibly change the terms of a will. It must be filed within 180 days of the grant of probate. The Wills Estates and Succession Act (WESA) states that if a testator dies without providing adequate provisions for the proper maintenance and support of the testator’s spouse or children, then the court has the right to vary the will to ensure fair circumstances. A Wills variation claim is brought under s. 60 of WESA.
Challenging a will’s validity
In British Columbia, a will can be deemed invalid if it is proven that the will was improperly executed, the testator lacked testamentary capacity or there was undue influence. The decedent’s most recent prior will is used if the will in question is deemed invalid. If there are also grounds to render that will invalid, and there are no other wills, the courts will deem that the deceased died intestate, i.e., without a will. The deceased’s estate will then be distributed according to WESA.
Lack of testamentary capacity
For a will to be valid, the testator must be of sound mind, memory and understanding. They should have the cognitive capacity to understand that the will dictates the distribution of their property at the time of their death. They should be able to remember their property and assets for distribution in the will and coherently express how they should be distributed. Finally, they should have the soundness of mind to remember to whom they owe a moral duty. Factors used to determine the testator’s understanding and knowledge include:
- Any visual or auditory deficiencies the testator may have had during the preparation of the will
- If the will was significantly different from previous wills due to a mental disposition
- Age-related illnesses that may have affected the testator’s memory or cognitive function
If evidence can be provided that the testator’s cognitive function was diminished and lacked the mental fortitude to prepare a valid will, it may be considered invalid. Substantiating this claim usually requires testimony from the witnesses, the person who drafted the will and the testator’s doctor.
Wills under WESA must be prepared and signed at the end by the will-maker. Signing should be completed in the presence of two witnesses over the age of 19, who should also sign the document. If a will is prepared at home and not correctly executed, it can be deemed invalid.
Other provinces may have different rules of execution for wills. If the will was prepared in another region and was not reviewed by a wills lawyer in Surrey, it may not meet the criteria for validity in British Columbia.
Duress or undue influence
Although there are no legal obligations set out under WESA for the provision for adult children, parents have a moral obligation if there are sufficient assets. If evidence is provided that a child was disinherited because of undue influence, this can invalidate a will. Evidence would need to show, for example, that the decedent was vulnerable to coercion – whether by the threat of physical abuse or removal of care – and that it influenced the terms of the will.
Another scenario is if the testator was unduly manipulated by other beneficiaries involved in preparing the will. If suspicious circumstances are established, the will can be voided.
Will and estate lawyers in Surrey, British Columbia
A parent’s rationale for excluding their child from a will, or disinheriting them, should be investigated to determine if their reasoning is factual or based on delusions or misleading circumstances. Testators have the right to protect their will by including a memorandum detailing their reasons for disinheritance.
If you believe that your loved one’s intentions were not truly represented in their will, it is best to seek legal advice as soon as possible. A wills variation is both time-sensitive and complex. Having a wills lawyer guide you through the process can help you achieve the best possible outcome.