In Canada, the courts acknowledge the autonomy of a person making a will (known as a “testator”). They are, for the most part, able to dispose and divide their assets as they choose. However, sometimes a spouse or child may feel that they did not receive their fair share of the estate and choose to contest or challenge the will. A parent may have disinherited them or they may feel that their portion was undercut.
Whatever the case, there are provisions under British Columbia law for people who want to contest a will.
There are three primary categories of grounds under which a will may be contested or challenged. Within these categories, there may be subsections that further clarify the reasoning for the action. These grounds must be clearly described and solid supporting evidence must be presented in order for the action to be successful.
The court can deem that a will does not adequately support the testator’s spouse or dependents. In such cases, the court will order what it determines to be equitable, just, and adequate. The decision will be based on the testator’s legal obligations to the individual as well as their moral duties. This depends on a variety of factors and the person contesting the will must present supporting evidence that supports any claims made.
In making this determination, the court may consider:
When reviewing a will, the court will often first seek to determine the validity of the will, then try to establish the testator’s intentions. This involves a review of how the will is constructed, including the language and verbiage of the testator, their expressions, and background or life experiences. This will try to create as clear a picture as possible of all the things that the testator knows at the time he or she created the will with particular emphasis on those things that may have had a bearing on the decisions outlined within.
If the court is unable to determine the testator’s actual meaning and intent from the will, as well as the circumstances that surrounded it, then the will be interpreted using principles of construction. The court will apply operating assumptions and rules that presume meaning and intent with a strong basis in context.
The court may deem the will to be invalid if one or more of these circumstances can be shown and proven:
If you are contesting a will, don’t try to do it yourself. Your best chance at success is to hire a lawyer who has experience and training in challenging wills. Call the offices of McLarty Wolf Litigation Lawyers and let us represent you in your case. Our education, experience, and personal commitment to the success of your case will help ensure that every care will be taken to see a favourable outcome for your case.
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