Challenging a Will: Grounds for Contesting a Will in BC

When a loved one passes away, the distribution of their estate is typically carried out according to their Last Will and Testament. However, in some cases, interested parties may feel that the Will is not valid or does not reflect the true intentions of the deceased. Challenging a Will is a legal process that allows individuals to contest the validity of the document. In British Columbia (BC), as in many other jurisdictions, there are specific grounds on which a Will can be contested. This blog post aims to shed light on the grounds for challenging a Will in BC.

  1. Lack of Testamentary Capacity

One of the primary grounds for contesting a Will in BC is the claim that the testator (the person making the Will) lacked testamentary capacity at the time of its creation. Testamentary capacity refers to the mental ability of the testator to understand the nature and consequences of making a Will. In BC, a testator must:

a. Understand the extent of their assets and the value of their estate.
b. Comprehend the potential claims of their beneficiaries and dependents.
c. Appreciate the implications of including or excluding certain individuals from their Will.
d. Not be suffering from any mental disorders that could impact their decision-making.

To challenge a Will based on lack of testamentary capacity, the concerned party must provide substantial evidence demonstrating that the testator did not meet the required mental capacity at the time of creating the Will.

  1. Undue Influence

Undue influence is another crucial ground for contesting a Will in BC. It refers to situations where someone exerts pressure or coercion on the testator, thereby influencing their decisions and preferences regarding the distribution of their estate. The undue influencer may manipulate the testator into changing their Will to benefit them unfairly or disinherit other rightful beneficiaries.

To prove undue influence, the challenging party must present evidence showing a relationship of influence between the testator and the alleged influencer, as well as the influencer’s active role in preparing or executing the Will.

  1. Lack of Proper Formalities

In BC, for a Will to be valid, it must comply with specific formalities as outlined in the Wills, Estates, and Succession Act (WESA). The testator must sign the Will in the presence of two witnesses who must also sign the document. Failure to adhere to these formalities could render the Will invalid and susceptible to challenge.

  1. Fraud or Forgery

If there is evidence to suggest that the Will is a result of fraud or forgery, interested parties can challenge its validity. Fraud occurs when the testator is deceived or misled into signing a Will that does not accurately represent their intentions. Forgery, on the other hand, involves the creation of a Will with the forged signature of the testator.

Conclusion

Challenging a Will is a serious matter that should not be undertaken lightly. If you believe you have valid grounds to contest a Will in British Columbia, it is crucial to seek legal counsel from an experienced estate litigation lawyer. Remember that the burden of proof lies with the challenging party, and demonstrating the presence of any of the aforementioned grounds requires robust evidence and skilled legal representation.

Before pursuing legal action, it is also advisable to consider alternative dispute resolution methods, such as mediation, to resolve potential issues amicably. Ultimately, the goal is to uphold the testator’s true intentions and ensure a fair distribution of their estate among beneficiaries.

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Mandy 0075 Mandy Badwal

Mandy Badwal

Mandy is an associate lawyer with Jiwa Law Corporation and her practice consists of matters relating to Wills and Estate Planning, Corporate and Commercial Transactions, and Real Estate Transactions.

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