The death of a loved family member is emotionally difficult, perhaps an 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, the contents of the will can 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.
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, for a will 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, and be in the presence of at least two adult witnesses who also must sign the will in the presence of the will-maker.
Prior to WESA, if a will failed to meet the formal requirements for a will to be valid, 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, which means that 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 cure or rectify a formal deficiency in a will if it is 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 can be challenged if it fails to satisfy the formal requirements, is not authentic, or fails to record 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.
A will may not be probated by the Court if it is established after a trial that the will-maker was not mentally capable of making a will or that the will was the result of the exercise of undue influence by another person.
In determining the mental capacity of the will-maker, the Court will apply a common law legal test established in Banks v Goodfellow (“Goodfellow”). The test, as restated in more recent court decisions, states that in order to have ‘testamentary capacity’ or a ‘sound disposing mind’, the following must be met:
The court further held that the test for testamentary capacity is not ‘overly onerous’ and a person may have sufficient capacity despite some cognitive problems such as imperfect memory. The expert medical evidence is typically relied upon in cases where a will is challenged on the basis of insufficient mental capacity.
A will may also not be probated if it is proved on a balance of probabilities that undue influence effectively equalling 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 is 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’.
See our blog post on Undue Influence for further details.
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:
See our blog post on wills variations for further details.
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 expert opinion evidence, is essential to the successful prosecution of a claim concerning a will. Expert testimony, whether from doctors or handwriting analysts, is expensive. Convincing another family member to testify against a reliable caregiver or other relative is often emotionally straining. Will contests are very involved and it is important that you know for certain that this is the right course of action and not one taken out of spite.
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