The death of a loved family member is an emotionally difficult, perhaps even traumatic event. That grief can be compounded if you learn that your parent or spouse treated you unfairly in their will or if you have concerns regarding the circumstances of the making of the will. Although it is difficult to be objective in these cases, you may have options and you will likely require legal advice concerning the merits of a possible claim.
There are three basic legal issues that arise when considering whether a will can be challenged. One is whether that the will is invalid because it was not signed or witnessed correctly. The second is whether the will is invalid because the will-maker was not mentally capable of executing a will or because the will was the product of undue influence exercised by some other person over the will-maker. Third, assuming the will is valid, can the contents of the will be attacked on the basis that it fails to make adequate provision for certain family members and as such is liable to be varied by the Court.
Because wills must be probated, that is processed and accepted by the Supreme Court of British Columbia as the valid last will and testament of the deceased, the Court will be involved in any dispute over a will’s validity or variation.
‘Formal’ Reasons Why a Will May Not Be Valid
There are a number of what lawyers call ‘formal’ requirements of a valid will. If the form of the will does not meet those requirements, it may not be accepted by the Court. Those requirements are set out in sections 36 to 40 of the British Columbia Wills, Estates and Succession Act or WESA.
Generally, to be valid, a will must be in writing, signed at the end of the document by the will-maker who is at least 16 years old, in the presence of at least two adult witnesses who also must sign the will in the presence of the will-maker.
Until recently, if a will failed to meet the formal requirements for making a valid will, it would not be probated and the will-maker’s descendants would be forced to look for a will made at an earlier time or potentially be faced with an intestacy, that is the estate would have to be administered without reference to the deceased’s wishes. On an intestacy, the distribution rules established in WESA (or its predecessor statute) would determine who received the deceased’s assets.
However one of the changes legislated by WESA is that the Court is given the power to determine that a document which does not meet the formal requirements of a will, for example because the deceased’s signature on the document is not witnessed, should still be accepted as the deceased’s last will and probated by the Court. In order to ‘cure’ a formal deficiency in a document and hold that it is in fact a will, the Court must be satisfied on a balance of probabilities that the document is authentic and records the ‘fixed and final expression of the deceased’s testamentary intentions’.
Therefore a will, or a document that is the subject of an application to the Court to have it accepted as a ‘will, may be challenged because it fails to satisfy the formal requirements, is not authentic or fails to record the fixed and final expression of the deceased’s testamentary intentions.
It should be noted that there are special rules regarding the formal validity of wills made by members of the armed forces or if the will was made outside of British Columbia: see sections 38 and 80 of WESA.
Substantive Reasons Why a Will May Not Be Valid
The Court will not probate a will if it is established after a trial that the will-maker was not mentally capable of making a will, or if it determines the will was made as a result of the exercise of undue influence by another person.
In a dispute whether the will-maker was mentally capable of making a will, the Court will apply a common law legal test known as the rule in Banks v Goodfellow (which is a nineteenth century English court decision). That rule or test as restated in more recent court decisions says that in order to have ‘testamentary capacity’ or a ‘sound disposing mind’, the following must be met:
- The will-makes must understand the nature and effect of a will;
- The will-maker must recollect the nature and extent of his or her property;
- The will-maker must understand the extent of what he or she is giving under the will;
- The will-maker must remember the persons he or she might be expected to benefit under their will; and
- The will-maker, where applicable, must understand the nature of the claims that may be made by a person who is excluded from the will.
The caselaw also says that the test for testamentary capacity is not ‘overly onerous’ and a person may have sufficient capacity despite some cognitive problems, for example imperfect memory. Expert medical evidence is typically relied upon in cases where a will is challenged on the basis of insufficient mental capacity.
The Court will also refuse to probate a will if it is proved on a balance of probabilities that undue influence, effectively equaling coercion, was exercised over the will-maker such that the will does not reflect the true intentions of a will-maker and was not the product of the will-maker’s own act. Concrete evidence of psychological or physical threats are typically required to prove undue influence.
Undue influence can be exercised in a variety of contexts. ‘Rogue’ family members or hired caregivers can take advantage of seniors who are isolated and/or suffer from some diminished mental capacity. Other ‘advisors’ or persons who pretend to befriend an isolated and vulnerable senior have also been found to be ‘undue influencers’.
Variation of an Otherwise Valid Will
Section 60 of WESA provides:
Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
As can be seen from that wording, only a spouse or a child of a will-maker can seek to vary a will in British Columbia. Grandchildren, siblings, parents or friends cannot bring a claim.
For those that can bring a claim, the central question is whether the will makes adequate provision for the proper maintenance and support of the claimant. That question has been extensively considered by the courts in British Columbia and also notably by the Supreme Court of Canada in the Tataryn Estate decision. Those decisions indicate that a court will consider a number of factors in determining whether a will adequately provides for a spouse or a child including:
- The legal obligations owed by will-maker (for example to provide financial support for a spouse or a younger child);
- The moral obligations owed by the will-maker (spouses and adult children are owed such obligations but some claimants may be owed higher obligations, for example long time spouses or disabled children);
- What substantial gifts the will-maker made in their lifetime to their spouse and children, if any;
- The size of the estate;
- The financial circumstances and needs of the spouse and children;
- Any conduct of the claimant towards the will-maker that justifies he or she being disinherited; and
- Any assured or implied ‘expectation’ on the part of a child that he or she would share in the estate.
Consult a Lawyer
Challenging a will on any ground likely requires a lawyer’s assistance. Estate litigation involves complex legal principles and issues and presents many traps for the unwary. In addition, the collection and presentation of the right type of evidence to the Court, including potentially expert opinion evidence, is essential to the successful prosecution of a claim concerning a will. People who are not familiar with the law, the role of evidence in the courtroom, and the procedures of the Court are unlikely to one, accurately assess the chances of a successful challenge to a will, and two, conduct the lawsuit and trial in a manner that maximizes the chances of success.
In addition, an unsuccessful lawsuit may also have ‘costs’ consequences. That means that if you lose an estate litigation case, you may become liable to pay a portion of the legal costs of the winner. Consequently, it is important to have effective legal advice about the merits of your claim and the financial risks of proceeding, not just at the outset, but also during the course, of any lawsuit.