Cut out of the will in Langley, BC? Included in the will, but given a paltry sum in comparison to the wealth of the estate?
If you are the spouse or child of the decedent, then you may have options. The Wills, Estates, and Succession Act of British Columbia offers you the opportunity to challenge the will on the grounds that the willmaker did not make adequate provision for your support.
In addition, there are other grounds on which a will may be challenged. A challenge may come from any person who may benefit from intestacy.
Adequate Provision and Support
In British Columbia, the willmaker generally has the right to dispose of their property however they wish. However, they have a moral obligation to make adequate provision and support for their children.
The courts will not enforce this obligation unless the children or spouse challenges the will as it stands. If they do, and the challenge is successful, then the courts can alter the will to divert the majority of the estate to these parties, and then will divide the rest among the heirs named in the will.
Distribution between children should also be equal unless there is a relevant reason for unequal distribution. It may make sense, for example, to give a larger portion of the estate to a deeply disabled adult child who cannot fend for themselves, but it would be unreasonable to do the same if both children are equally legally capable.
The specifics of will variation will depend on the size of the estate and the will as it stands. Every estate is different.
Other Grounds for Challenging a Will in Langley, BC
Adequate provision and support is not the only reason a will may be challenged.
The will may also be challenged if the willmaker did not have knowledge of the will’s contents, or approve of them. For example, if a beneficiary changed the will and had the willmaker sign it when they could not see well.
Often willmakers are dependent upon certain beneficiaries, and are isolated from other people towards the end of their life. This can open the door to an undue influence claim, which exists any time a person influences the willmaker through force, fear, or emotional manipulation or abuse. The courts will take a hard look at whether the willmaker was vulnerable, and how much power the alleged influencer may have had over the willmaker.
Another grounds for challenging the will would be a lack of testamentary capacity. That is, the will was made at a time when the willmaker couldn’t possibly have been of sound mind. If they were delusional or suffering from dementia at the time the will was made then the will would be highly suspect.
Wills that are vague, contain mistakes of fact, are based on untruths told that caused the willmaker to dispose of their property in certain way, or which are impossible to execute due to disparities between the property described in the will and the property that actually exists may also be challenged.
Finally, the will may be challenged if it was executed improperly. A valid will must be in writing and signed by the willmaker in the presence of two witnesses. They must witness the will in the presence of both the willmaker and each other, and must be 19 years or older unless the willmaker is in the armed forces.
You cannot challenge a will simply because you do not like the terms of the will, or because you believe you were promised a portion of the inheritance that you did not receive.
Disinheriting Children in British Columbia
It is possible to legally disinherit children in BC, but the willmaker must take certain legal steps first. They must include a statement of disinheritance in their will explaining their reasons for cutting a beneficiary from the inheritance.
Even in a case of estrangement the child may have a defense. For example, if the estranged child has gone through some form of counseling they may be able to show that the estrangement was essential to their own emotional and physical health, especially in cases where the parent was emotionally or physically abusive. The courts generally see abuse as a voluntary abdication of parental obligations.
Valid reasons may include estrangement or criminal activities. Invalid reasons would include the child’s sexual orientation, gender expression, marital status, family status. It also would not be valid to penalize female children at the expenses of male children, or to penalize children for pursuing a legal profession the willmaker did not approve of.
The Process of Contesting a Will in Langley, BC
To begin, your lawyer must file a Notice of Objection prior to the completion of the probate process.
Probate certifies that a will is valid. Your objection will call that validity into question. There will be time to go through a discovery process, as well as time for all parties to agree on a settlement. They court may choose to honor the settlement, but it doesn’t have to.
There will generally be a hearing where all parties will get the opportunity to make their arguments before the judge. Various witnesses will give testimony and present evidence to support that testimony.
The judge may choose to uphold the will, to revert the will to an earlier version, to vary the will, or to declare the will completely invalid. If the will is declared invalid, it will be administered according to intestacy laws.
Need help challenging a will?
Estates litigation is complex, and every family is different. So is every estate.
If you need to challenge a will, you’ve come to the right place. We’ve got decades of experience helping disinherited children and spouses reclaim their inheritance share.
Contact us to schedule a case review today. We’ll help you determine whether you have sufficient grounds for a challenge, and will discuss the next steps you’ll need to take to press your claim.