If you are the child or spouse of an individual with a substantial estate, then it is reasonable to expect a substantial inheritance after that person dies. Yet all too often, willmakers make unfair or emotional decisions about how to distribute their estate.
While the law does give willmakers a great deal of power over where their money and property go after death, it also recognizes that individuals have a moral obligation to their spouse and children. That obligation requires them to make “adequate provision and support” for their children, even when those children have already reached adulthood themselves.
This law is unique to the province of British Columbia and offers recourse that you might not have in other provinces.
Grounds for Challenging a Will in British Columbia
You cannot challenge a will simply because you do not like what it says. Nevertheless, there are six legal grounds which allow you to challenge the will.
#1) Adequate Provision and Support
As discussed, spouses and children may challenge the will when they feel it does not offer them adequate provision and support. There is no way to offer exact amounts or percentages of what adequate provision and support looks like. It has a lot to do with the size of the estate. What the court accepts as adequate provision and support for Estate A may not hold water for Estate B. As an example, courts tend to take a dim view of a spouse or a child inheriting $100,000 of a $9 million estate, but might see a $1 million inheritance as perfectly valid depending on who else stands to inherit.
In general terms, judges who vary the will generally allocate 50% to 70% of the estate to the spouse and children, divided equally between. Unequal divisions are only offered when backed up by circumstance. For example, if one adult child is deeply disabled there may be grounds to give that child a greater share of the estate, given the fact that the spouse and other children have some resources for their own provision and support.
Your lawyer can give you best and worst cases scenarios when you sit down for your case review.
#2) No Knowledge or Approval of a Will’s Contents
Was the will altered and then presented to a blind or impaired testator? In that case, you might have grounds on the basis that the willmaker had no idea what was in the will’s contents and would not have agreed to them had they known.
Evidence in this case might include evidence of impaired sight or hearing, evidence that the will varies significantly from past wills, and evidence that a beneficiary had significant access to the testator to make such a change happen.
#3) Undue Influence
You have a claim for undue influence if you can show one of the beneficiaries used force, fear, manipulation, or abuse to change the terms of the will. The coercion must be such that it was sufficient to overcome the willmaker’s own thought process.
Evidence in this case might include evidence that the willmaker was vulnerable to the influencer in some way. For example, if they were living with the influencer and reliant upon them for daily care. The courts may also consider what kind of pressure was applied. Finally the courts will consider whether the new will differs significantly from earlier wills.
#4) Lack of Mental Capacity
This claim rests on the grounds that the willmaker was not “of sound mind” when they made the will. The willmaker must be able to understand their own estate, and they must understand that they are making a will.
Evidence in this claim might include evidence that the willmaker suffered from dementia or delusions at the time that the will was made.
#5) Ambiguous or Unenforceable Wills
Some wills are simply poorly written. The terms are too vague or ambiguous to understand. The provisions of the will are based on mistakes of fact. The testator might have been a victim of some kind of fraud. In addition, some wills are out of date. A will made in 2002 might fail to account for new assets, for example, or might discuss assets that no longer exist.
If the will simply cannot be executed as is, then the court may alter or correct the will until it is something that is more in line with what they believe the testator’s true intentions to be.
#6) Improper Execution
If the testator created a homemade will it could be that the will was not executed properly. It must be in writing, and signed by two witnesses of the proper age. The will must be signed in the presence of both the willmaker and the witnesses.
The will itself might be evidence in this case, though it may also be possible to prove the witnesses were not present at the same time.
Recourse for Formally Disinherited Children
Even if you are formally disinherited for reasons of estrangement you might have some recourse under the Wills, Estates, and Succession Act. For example, the estrangement must be voluntary on your part. If you left because of emotional or physical abuse, the estrangement may be seen as voluntary on your parent’s part: as an abdication of their parental responsibilities. You may still be able to challenge the will.
A parent may not disinherit you because of your gender, sexuality, gender expression, legal profession, or on other arbitrary grounds. A parent may disinherit on the grounds that the child was themselves engaged in abusive activity, or was engaged in criminal activity.
Don’t assume you don’t have a claim until you talk to a wills and estates lawyer.
Get Help Today
Inheritance is complicated. If you feel you have grounds to challenge a will, contact us today to schedule a case review.
We’ll examine your grounds for challenging the will and the evidence that’s available in your case. We’ll look at the estate itself and help you take your next steps.
You don’t have to do this alone.