Westside Law: Wills Estate Trust Lawyer Notary Public Vancouver BC

Learn about challenges to wills under the law in this short article.

Yes. Wills can be challenged under certain circumstances. A challenge can be made to the validity of the will or a challenge can also be made to the content of the will.

Challenging the Validity of a Will

A will can be challenged on the basis that it does not comply with the legal formalities required by the law. See the article on signing a will for details on the required signing formalities. In addition, the law also requires that the person signing the will must have what is normally referred to as "testamentary capacity": this means that he or she must have an understanding of what he/she is doing (i.e. making a will and disposing of his/her property at death). They must be free from any mental disability which would negate the above. They must also have a genuine free choice in the matter (i.e. not under duress or undue influence). If it can be proved that these requirements are not satisfied, it may be possible to have the will set aside through a court application.

Challenging the Will Through Claims Existing Prior to Property Owner's Death

Claims which exist against the property owner prior to his/her death can be made against the estate if they survive the death of the property owner. The most common of these types of claims are the claims of creditors, who usually have security for their claim, and the claims of spouses or partners using what is usually referred to as "marital" or "family" property law.
You should contact a lawyer if you need more information on challenging a will in these circumstances.

Challenging the Content of a Will Using Dependents Relief Laws

In some provinces, claims can also be made using what is known as dependents relief laws (in British Columbia, for example, the law is the "Wills Variation Act"). These laws give a Court the power to vary the will (and in some cases also to vary the statutory provisions applicable to people who die without a will) so that adequate provision is made for certain types of people.
The remedy is in the court's discretion and the persons entitled to apply for relief vary from province to province. Typically, they include the spouse or partner and children and, in some provinces, dependent parents, siblings or others. British Columbia probably has the most sweeping law. In BC, for example, courts are now interpreting the Wills Variation Act as imposing a general obligation not to disinherit a child regardless of age and need unless there is a good reason for doing so.

Please contact us if you need additional information.