Challenging A Will

First Posted: Feb. 9, 2010
Revised:

Laws surrounding when and how a will may be challenged vary across Canada. In British Columbia, a will may be challenged for its validity, on the basis that the deceased person (the testator) lacked the proper mental or physical capacity when he made his will. It may also be challenged on the basis that the testator was wrongly influenced by another to make gifts he really did not intend to make. (Gifts made prior to the testator's death may also be challenged on these grounds).

There is also a law called the Wills Variation which gives a statutory right to children or spouses (including common-law spouses) of a testator to challenge the provisions of a will on the basis that they have not been treated fairly.

Challenges based on validity, capacity, or on undue influence are called "probate actions." When successful, the will is declared invalid, and either an earlier will or the intestacy rules found in the Estate Succession Act will apply to the distribution of the deceased's estate.

Challenges made to gifts made by the testator during his lifetime are trust claims. When successful, the gift is voided and the asset forms part of the estate, to be distributed in accordance with the will.

A court considers many factors in deciding probate and trust claims. There are also legal and evidentiary presumptions which come into play. For example, there is a presumption that a testator has mental capacity when his will is signed and witnessed in a certain fashion. In some cases, the person who seeks to uphold the will as valid will need to provide evidence, and in other challenges the burden of evidence will be on the persons who believe the will should not be upheld. The law regarding lifetime gifts has been particularly scrutinized and refined in the last few years.

The death of a parent or spouse is a very emotional time for the whole family, even in cases of estrangement. Accordingly, it may be difficult for you to assess whether you should challenge the validity of a will. If you are involved in a situation where a loved one has left a will which you believe may not be valid, reflect the testator's true intentions, or if the estate's assets are markedly less than the testator led you to believe, you will need the advice of an experienced lawyer.

An estate litigator will be able to assist you in weighing out your options, and can provide you with an opinion regarding your chances of success in a probate or trust action.

Horne Coupar's litigation team is very well-experienced in both challenging and defending wills. Our firm's practice focus is on wills, estates, and trusts, and we are happy to provide you with a consult to discuss your particular circumstances.