Your Guide to Contesting A Will in BC (British Columbia)

Contesting a will can be a complex and emotional legal process. Wills serve as crucial documents to delineate the distribution of assets after a person’s death, ensuring their final wishes are honored. While the courts of British Columbia will strive to follow the instructions left by a person in their will, there are incidents where contestation may be possible, or even necessary. 

If a will was created under suspicious circumstances, includes ambiguous instructions, or causes disputes among potential heirs, seeking the assistance of an estate litigation expert is crucial. An experienced estate planning law office, such as Jiwa Law, can give individuals the guidance, and tailored advice they need to address a variety of will issues. 

Most importantly, the right legal office can provide tailored advice, specific to the unique nuances of British Columbia’s legal landscape. Here’s everything you need to know about the process of contesting a will in BC (British Columbia). 

Grounds for Contesting the Validity of A Will

As a binding legal document a will cannot be contested by just anyone who feels the directions given by their loved ones are unfair, or unreasonable. However, there are various incidents wherein the Supreme court will allow the contestation of a will, such as:

If the Will Writer Lacked Testamentary Capacity

For a will to be valid, the testator must understand what a will is, and have a clear understanding of the their assets, and the duties they have to their dependents. If the will maker did not have the mental capacity to create a will, the document can be contested. 

For instance, if a person is married while children and makes no provision for those dependants in the will, due to mental health issues, it’s likely to be contested. However, contesters will need to provide evidence such as medical records to validate the reason for the contest.

When a Will Maker Faced Undue Influence or Coercion

The person who creates a will must be able to outline their wishes without pressure or manipulation from another party. If someone exerted “undue influence” over the will maker, pushing them to make specific decisions outside of their best interest, this could be grounds for contestation. 

It can be difficult to prove undue influence to the courts, but it may be possible to demonstrate a person’s sway over another individual by sharing threatening letters, messages, or emails. 

When a Will is Improperly Executed

Working with a legal professional on the creation of wills, succession act documents and estate planning documents can reduce the risk of errors, but mistakes still happen. If a will does not follow the guidelines set out by the Wills, Estates & Succession Act of British Columbia, a challenge can be made to the validity of the document.

For instance, of two witnesses aged 18 or older were not present when the testator signed the will, a challenge may be made. Typically, handwritten wills are not permitted in BC, so it’s important to access the guidance of an estate planning lawyer when creating these documents.

If Fraud or Forgery is Evident

It is possible to challenge a will you believe to have been faked or formed. This is a common issue among handwritten wills, which aren’t permitted in British Columbia most of the time. However, it can also emerge in other instances. 

Those contesting the will need to demonstrate evidence of fraud and forgery, such as evidence of a fake signature, or proving that the testator was misrepresented by a legal professional. You may need to consider working with a handwriting expert. 

If There is Ambiguity in the Will

In British Columbia, a will may be contested on the grounds that the language included is unclear, vague, or ambiguous. For instance, if a will doesn’t include clear instructions for the adequate provision of resources to dependants, or beneficiaries aren’t clearly defined, the document can be challenged. 

In these cases, an individual may need to apply with the court to have the will “interpreted”, at the cost of the estate. This process can be laborious and may lead to confusing legal arguments, where the meanings of certain words are discussed at length. 

There’s Evidence of Intended Revocation

If an individual has evidence that the testator planned to revoke the will, or had already revoked it, this could also lead to a challenge in the courts. It will be crucial to work with an expert in estate law at this stage to demonstrate clear evidence that the will would have been revoked. 

An estate litigation lawyer for instance, can show evidence that a client had planned a time to discuss changes to or the cancellation of their will. 

Errors Need to be Rectified

In some cases, rather than challenging a will, an individual can request that errors in a will be rectified. For instance, there may be errors in a will’s language, action descriptions and other factors that influence the outcomes of the documents. 

Rectification can be pursued with the help of an estate litigation lawyer when errors appear in a will that would lead to misrepresentation of the testator’s true wishes.

Who Can and Cannot Contest a Will in BC?

As mentioned above, while it is possible to contest a will in British Columbia, not every individual has the right to do so. A person that contests a will must have the “standing” or right to bring a lawsuit to the court. Some of the parties who may be eligible to contest a will include:

  • Beneficiaries: Beneficiaries named in the will have the primary right to contest its validity. Often, challenges happen when beneficiaries believe the document doesn’t reflect the testator’s intention, or features obvious errors. 
  • Interstate heirs: Individuals who inherit assets in the absence of a will can also contest a will if they believe it contracts intestacy laws. This often occurs when the will allocates assets in a manner considered inconsistent with succession rules. 
  • Persons with a financial interest in the estate: Those with a specific financial interest in a person’s estate, such as creditors or individuals owed money by the deceased, may have the right to challenge a will. This often happens when a will’s provisions impacts the repayment of debts and other financial obligations.

Alternatively there are also various individuals who lack the “legal standing” to contest a will. For instance, creditors without a financial interest in an estate will usually not be able to challenge the provisions made in a person’s will. 

Distant relatives and acquaintances without significant ties to the testator, or strangers and non-beneficiaries also lack adequate standing. The legal system in BC prioritizes those who are directly impacted by the will and estate planning law. 

Additionally, those who attempt to contest a will after the statute of limitations has passed may have their challenges ignored, even if they have legal standing to contest the document. 

Steps on How to Contest a Will in BC

Contesting a will requires deep knowledge of estate law, and the legal landscape of British Columbia. This is why it’s so important to ensure you’re working with a reliable estate planning lawyer with a profound understanding of the Wills Variation Act. 

Often, the process of contesting a will breaks down into several steps:

Step 1: Initial Assessment and Consultation

The first step is assessing the will and looking for valid reasons to contest the document. An experienced estate planning and litigation lawyer, like the experts at Jiwa Law, will be able to help you understanding whether you have the correct standing for contestation. 

Our team specializes in navigating will contestations and estate planning law, providing tailored advice to meet with your unique situation. You can schedule a call with your team today to learn more about how we can help with the will contestation process. 

Step 2: Gathering Evidence

Next, the individual looking to contest a will must gather sufficient evidence to support their grounds for challenging the document. Depending on the reason for contestation, there are various forms of evidence that might strengthen your case, such as proof of lack of testamentary capacity (medical documents), or witness testimonies outlining undue influence.

In some cases, it may be helpful to access the support of experts who can share their opinions on the likelihood of errors and issues with the will itself. 

Step 3: Filing a Notice of Dispute or Legal Action

Next, an individual and their estate lawyer must file a notice of dispute or legal action with the courts, and with the individuals responsible for performing the actions outlined in the will. The notice must detail the reasons for contesting the will. 

These notices must be filed in a timely manner, to ensure you can adhere to the statute of limitation for will disputes in British Columbia. 

Step 4: Discovery and the Sharing of Evidence

During this state, both parties involved in the dispute will share relevant evidence and information. An estate law professional will play a crucial role in navigating this discovery process, ensuring the right information is revealed and shared with the courts. 

Step 5: Mediation and Negotiation

Often, in British Columbia, parties will be required to attempt alternative dispute resolution methods before bringing their case in front of the Supreme Court. Methods like mediation and legal negotiation can help to facilitate settlements outside of the court rooms. 

If mediation sessions are successful, they can allow for an amicable resolution, while ensuring individuals can avoid lengthy court room proceedings. 

Step 6: Court Proceedings

If alternative dispute resolution methods or unsuccessful, the case will then be taken to the Supreme Court for consideration. There are many stages involved in presenting a case to the courts, from direct and cross examinations, to hearings. 

Legal representation is crucial during this stage, to ensure your interests are properly presented and protected in the court rooms. 

Step 7: The Appeals Process

In some cases, if your challenge doesn’t go according to your expectations, it may be possible to appeal the decision made by the courts. Not every appeal will be successful. You’ll need to ensure you have a valid reason to challenge the court’s decision, and gather additional evidence. 

An estate litigation expert can help you to navigate this complicated process. 

Statute of Limitations in Contesting a Will

It’s important to keep in mind there are time constraints to consider when contesting a will in British Columbia. If a will is in probate, it is subject to a six-month deadline for action to commence. It also requires the return of the certificate of appointment from an estate trustee. 

Alternatively, if a will is not in probate, the statute of limitations usually lasts for two years. There are circumstances where extensions and exceptions may apply. For instance, the court may grant an extension to the limitation period based on issues with fraud, concealment, or incapacity. 

Contesting a Will in British Columbia

Contesting a will in British Columbia can be a complex and emotional process, with a number of challenging nuances to consider. It’s important to ensure you have the right legal advice and professional guidance to help you navigate this journey.

At Jiwa Law Corporation, we’re proud to stand as a trusted estate law expert for the residents of British Columbia. We deliver personalized, professional support to every client, covering a wide range of estate law services. 

Contact us today to request a consultation and begin your legal journey. 

FAQ:

Can you challenge a will that isn’t fair?

There are instances where you may be able to challenge a will that isn’t fair, if you are determined to have the right “legal standing” to do so. You will need to prove there is a valid reason to contest the will, such as evidence of fraud, undue influence, or lack of testamentary capacity.

How long do you have to contest a will in BC?

The standard statute of limitations for contesting a will in British Columbia is up to 2 years. However, a will in probate will be subject to a statute of limitations of six months from the date when the will was activated. There are instances where exceptions may apply. 

What are the potential outcomes of contesting a will?

If your contest of a will is successful, the court may order changes to the instructions in the will that influence the distribution of assets. If you are unsuccessful, you may need to consider appealing the court’s decision. 

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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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