Takeaways for Odds of Winning a Will Contest in British Columbia
Contesting a will in BC is a complex process, but the law does provide remedies to address unfair or invalid wills. Here are the key points to remember:
- BC’s laws (WESA) strongly protect spouses and children. If you are a spouse or child who was left out or treated poorly in a will, you have a solid legal basis to seek a change. The courts can and do override a will to provide for you.
- Success isn’t guaranteed, but your odds of winning are reasonable when you have clear legal grounds: e.g. a parent’s moral duty clearly unmet, or clear evidence of incapacity or undue influence. Each case is unique; as one BC lawyer put it, it’s “nearly impossible to predict” a wills variation outcome in advance. There is a broad range of possible results, from no change to a complete reallocation of the estate. That uncertainty is why getting legal advice is wise, and why many cases settle.
- Grounds matter: Lack of capacity and undue influence are harder to prove but essentially attack the will itself. WESA variation doesn’t invalidate the will; it asks the court to rewrite it for fairness. Think carefully which route applies to your situation (sometimes people pursue both in the alternative). If the will seems valid but simply unfair, the variation route (for spouses/children) is often more straightforward and has a higher chance of yielding something.
- Evidence is key: Before contesting, gather medical records, correspondence, earlier drafts of wills, financial records; anything relevant. Strong evidence of wrongdoing or need can tip the scales in your favor. For example, diaries or emails that show the will-maker’s state of mind, or witnesses who observed changes in behavior, can corroborate your claims of incapacity or influence. For a variation case, evidence of your relationship, support you gave, or dependence on the deceased can support your claim.
- Family context counts: Courts aim to be fair, not only legally but morally. The stories behind the will; who did what in the family, who needs what, and what the will-maker’s reasons were; all factor in. The more you can demonstrate that the will’s outcome offends a sense of justice or normal expectations (for example, a lifetime loyal child cut off without reason, or a secret last-minute will made under dubious circumstances), the better your chances.
- Most disputes settle: While you should prepare as if going to trial, know that it’s common for estates to reach a settlement. This might mean you don’t get everything you asked for, but you secure a guaranteed share without the risk of losing outright. Settlement can also save on the time, costs, and stress of a court fight. The possibility of the estate paying costs can actually encourage settlement; all parties know that a prolonged fight could diminish the estate’s value in legal fees.
- BC courts have broad powers and aren’t shy to use them: As illustrated by cases like the twin daughters getting 70%, or wills being overturned for undue influence, judges will intervene when warranted. But they will also uphold wills when they find the will-maker’s decisions were within a reasonable range. It’s a nuanced balance.
Contesting a will in British Columbia can be challenging, and the odds of winning depend on the circumstances and legal grounds of the case. In BC, unique laws (notably the Wills, Estates and Succession Act or WESA) give spouses and children strong rights to seek a fair share of an estate.
Below we break down the chances of winning a contested will in BC, including success rates (where available), common grounds for challenges, important factors (relationships, financial need, evidence, family dynamics), and examples from BC court decisions. We focus exclusively on British Columbia law and cases, to keep the information relevant for BC readers.
Success Rates: How Often Are Will Challenges Successful in BC?
It is nearly impossible to pin down a single “success rate” for will contests in BC; outcomes vary widely case by case. Will challenges are highly fact-specific, and results depend on the strength of evidence and the specifics of the family situation. Some challenges are successful or partly successful, while others fail completely. Many cases also settle out of court, making definitive statistics hard to find.
That said, British Columbia is known as one of the most favourable jurisdictions for challenging a will if you are a spouse or child of the deceased. Unlike most other provinces, in BC even independent adult children (not just financially dependent kids) can make a claim if they were treated unfairly in a will.
This means that spouses and children in BC often have a significantly better chance of success than similar claimants in other places. By contrast, people who are not the spouse or child (for example, siblings, stepchildren not formally adopted, or other relatives) generally cannot claim a share under BC’s WESA variation provisions.
Those individuals would have to contest the validity of the will (for example, by proving the will is invalid due to lack of capacity, undue influence, or fraud), which is typically more difficult and has a lower success rate.
In summary, BC courts do overturn or alter wills with some frequency in favor of spouses and children, but each case turns on its own facts. The key is understanding what legal grounds you have and how strong your case is under BC law. Below, we outline the main legal grounds for contesting a will in BC and discuss the odds of success for each.
Legal Grounds for Contesting a Will in BC
Under BC law, you cannot contest a will simply because you feel it’s unfair; you need a valid legal ground and standing to make a claim. The main legal grounds in British Columbia are:
- Wills Variation (Unfair Distribution); a claim under WESA that the will failed to make adequate provision for a spouse or child.
- Lack of Testamentary Capacity; arguing the will-maker did not have the mental capacity to make a valid will.
- Undue Influence; claiming the will was the result of someone’s improper pressure or manipulation.
- Fraud or Forgery; e.g. the will or signature was forged, or the will-maker was misled.
- Improper Execution; the will wasn’t signed or witnessed correctly per legal formalities.
Most will contests in BC fall into two broad categories: challenging the validity of the will (for reasons like lack of capacity, undue influence, fraud, etc.) or seeking a variation of an otherwise valid will because it unfairly leaves out a spouse or child. We’ll focus on the most common and relevant grounds; undue influence, lack of capacity, and unfair distribution under WESA; and how they affect your chances.
Undue Influence: Difficult to Prove, But WESA Has Eased the Burden
Undue influence occurs when someone exerts pressure on a will-maker to such a degree that the will reflects the influencer’s wishes rather than the true intent of the will-maker. Proving undue influence is notoriously challenging because it often happens behind closed doors, with no witnesses.
In fact, before BC updated its laws, it was extremely difficult to successfully challenge a will for undue influence; the person contesting had to prove the coercion, and failure could lead to having to pay special costs.
However, BC’s WESA has made undue influence claims somewhat easier to win. Section 52 of WESA shifts the burden of proof in certain situations.
If the person challenging the will can show suspicious circumstances; for example, that a beneficiary was in a position of power or trust over the deceased (such as a caregiver or close relative) and the will-maker was dependent on them; then the onus shifts to the beneficiary to prove there was no undue influence.
This is a significant change; it “allows for a greater number of cases alleging undue influence to be successful” under the new law.
Still, the odds of winning an undue influence claim depend on strong evidence. Courts do not require proof of outright threats or malicious intent; even subtle pressure that sways the will-maker’s decisions can qualify as undue influence.
But you will need to present evidence of the relationship and the pressured circumstances. For instance, was the will-maker elderly or cognitively declining and reliant on the beneficiary for care? Was there a sudden, radical change in the will benefitting that person? Such evidence greatly improves your chances.
Example: In Halliday v. Halliday Estate (2019 BCSC 554), an elderly father with dementia made new wills leaving almost his entire estate to his second wife (and, if she died, to her daughters), virtually cutting out his own son.
The court found that the father’s diminished mental capacity made him susceptible, and that the wills were procured through the undue influence of the second wife.
Because the wife was actively involved in arranging the new will while the father’s cognition was declining, and stood to benefit, the court held the wills invalid for undue influence (and lack of capacity, as discussed next).
This case shows that with clear evidence of dependency and an unusual change benefiting the influencer, BC courts are willing to overturn a will for undue influence.
On the other hand, if the will-maker was strong-willed, acted independently, and there’s little evidence beyond someone receiving a larger share, an undue influence allegation may fail.
Bottom line: Undue influence cases are complex and fact-heavy. Your odds of success increase if you can show a relationship of dominance (e.g. elder parent relying on a child or caregiver) coupled with a will that drastically favors that person. Thanks to WESA, once you establish those facts, the other side must prove they didn’t unduly influence; a significant advantage for the challenger.
Lack of Capacity: Winning by Proving the Will-Maker’s Incapacity
A will is only valid if the person signing it had testamentary capacity; in simple terms, the mental ability to understand what they’re doing.
The legal test for capacity in BC requires that the will-maker understood the nature of making a will, knew what property they owned, knew who their expected beneficiaries or dependants were, and was not suffering from delusions or incapacity that affected their decisions.
They must have had a “disposing mind and memory,” meaning they comprehended the extent of their assets and the claims of those who might expect to inherit.
Challenging a will for lack of capacity means convincing the court that the will-maker did not meet this test at the time the will was executed. This often arises with elderly or ill will-makers; for example, someone with advanced dementia or other cognitive impairment at the time of making the will.
If successful, the will is declared invalid (and typically an earlier will or the intestacy rules will apply instead).
How likely are such challenges to succeed? It depends on the strength of the medical and factual evidence. There is a built-in presumption that a formally executed will is valid, so the burden is on the challenger to bring evidence of incapacity.
Strong evidence might include medical records diagnosing dementia, testimony from those who observed the will-maker being confused, or evidence that the will-maker didn’t understand the complex changes in the will.
If the will was made under dubious circumstances (for example, without a lawyer, or when the person was very ill or isolated), the odds of success improve.
Example: In the Halliday v. Halliday Estate case above, the son also argued his father lacked capacity due to dementia. The father had been diagnosed with dementia in 2012 and made the new wills in 2014.
Witnesses described his increasing forgetfulness and confusion in that period. The court agreed that the father did not have a sound disposing mind when signing the 2014 wills, given the medical evidence of cognitive decline.
Thus, the wills were invalidated on the basis of incapacity (as well as undue influence). This case illustrates that when clear medical evidence of mental incapacity aligns with a dramatic or suspicious change in the will, a capacity challenge can certainly succeed.
Conversely, if a will-maker, even if elderly, had periods of lucidity and the will was executed with a lawyer or doctor attesting to their alertness, a capacity challenge becomes much harder to win. Courts will uphold a will if the evidence shows the person was capable at the time, even if they were fragile or suffered intermittent confusion.
The key is whether the will-maker understood what they were doing at the moment the will was made. In practice, capacity challenges that succeed often involve scenarios where the will-maker’s cognitive impairment was severe and well-documented (e.g. advanced Alzheimer’s, pronounced dementia, stroke impairments, etc.).
If you have such evidence, your odds of winning on this ground are reasonable; without it, this path is an uphill battle.
Fraud, Forgery, and Improper Execution
Although less common, wills can be contested for fraud or forgery (for example, someone faked the will or tricked the testator into signing) or for failure to meet formal signing/witnessing requirements. Proving fraud or a forged will is extremely challenging and rare; it essentially requires clear evidence that the document is not genuine. Improper execution (such as lack of witnesses) is more straightforward if it truly occurred, but in modern practice most wills are executed with legal advice so this ground doesn’t arise often. These grounds are worth mentioning but are not the focus here, since the question is primarily about the odds of success, and most such cases in BC revolve around undue influence, capacity, or WESA claims of unfair distribution.
Wills Variation (WESA); Challenging Unfair Will Distribution
British Columbia’s law gives spouses and children a special avenue to contest a will that they feel left them with an unfair or inadequate share, even if the will is otherwise valid. This is done through a wills variation claim under Section 60 of WESA. Essentially, if a will does not make “adequate provision for the proper maintenance and support” of the will-maker’s spouse or children, the BC Supreme Court has the power to vary (change) the will to provide what is “adequate, just and equitable” for them. In plain language, the court can rewrite the will’s distribution to ensure it’s fair to the surviving spouse and kids.
Who can make a WESA variation claim? Only the spouse (including a common-law partner of at least 2 years) and biological or adopted children of the deceased qualify. Stepchildren or other dependents not formally adopted are generally not eligible to use this law. (They would have to pursue other legal remedies, if any.) The claim must be started within a tight timeline; 180 days from the grant of probate in most cases; so acting quickly is important.
Now, what are the odds of winning a wills variation case? In BC, they are relatively high if you are a spouse or child who was left out or inadequately provided for. The reason is that BC courts have a broad discretion and a mandate from WESA to ensure spouses and children are treated fairly. The court balances the testator’s freedom to distribute their estate with the society’s reasonable expectations of what a moral and legal obligation to the family would require. In leading cases (like the Supreme Court of Canada decision in Tataryn v. Tataryn Estate), it’s established that a will-maker’s testamentary freedom is secondary to the moral and legal obligations owed to spouses and children.
- Spouses: As a spouse, your odds of success in a wills variation claim are excellent if you were left with less than what is considered adequate. In fact, one BC legal commentary notes there would be “few situations where a spouse would be unable to challenge a will where the spouse did not receive at least half of the estate”. In other words, if a deceased person tried to disinherit their husband or wife (or leave them only a token share), the court will almost always step in to substantially increase the spouse’s share. The only exceptions might be if the spouse already received significant assets outside the will (for example, via joint property, insurance, or trusts) that compensate, or if there were circumstances like a very short marriage and detailed marriage agreements. The general expectation in BC is that a surviving spouse should get around half the estate (often analogous to what would be a fair division under family law if the couple separated). So from a spouse’s perspective, the chance of winning a will variation is high; it’s arguably the strongest claim one can make.
- Children: Adult children (including independent, self-sufficient children) also have rights under WESA, though their odds of success can vary more than a spouse’s, because the court will consider the reason(s) the parent left them less or nothing. If a child is disinherited or given an unfairly small share without a valid and rational reason, BC courts often do award that child a portion of the estate. There is an underlying principle that, absent circumstances to the contrary, parents should not treat their children arbitrarily unequally; “there’s an expectation that adult children will share equally in their parents’ estate, absent reasons otherwise”.
However, the will-maker is allowed to have “valid, rational reasons” to disinherit or favor one child over another. Courts will examine the will-maker’s stated reasons (sometimes reasons are described in the will or evidenced in notes/letters) and judge whether those reasons align with “community standards” of what a judicious parent would do. Examples of reasons that might justify disinheriting or reducing a child’s share include: longstanding estrangement or misconduct by the child (especially if the child was to blame for the poor relationship), the child received substantial gifts or support from the parent during their lifetime, or the child has significant assets while other siblings are in greater need. If the court finds the parent’s reasons for disinheriting a child valid and not arbitrary, the child’s variation claim may fail; the court could uphold the will-maker’s decision.
Example; Successful claim: In a 2021 case widely reported in BC, a father tried to disinherit his twin daughters entirely, leaving his around $900k estate to two friends and even instructing his executors to fight any challenge by the daughters. The father had been mostly absent from the daughters’ lives. The BC Supreme Court nonetheless ruled in the daughters’ favour; the judge concluded the father owed a moral obligation to them despite the estrangement, and awarded the twins 70% of the estate. The court essentially refused to let the father “abandon his daughters in death as he had done during his life”. This illustrates that even a parent who had little involvement can be found to have a lingering moral duty, especially when the children did nothing wrong to merit disinheritance.
Example; Unsuccessful claim: Contrast the above with Williams v. Williams Estate (2018 BCSC 711). In that case, a father left virtually all of his estate to one son (who had a close relationship with the father and a family to support), and left only a nominal amount to his other son, who had been estranged from him for years. The disinherited son’s claim was denied; the court found that the father’s reasons (a much stronger relationship with the favored son, the estrangement from the other, and the fact the favored son had dependents to care for) were rational and valid in the circumstances. Because the will-maker’s decision fell within the range of what a reasonable parent might do, the court upheld the will and refused to vary it. This shows that an adult child will not always win, particularly if the parent can point to clear justifications for unequal treatment that the court deems acceptable.
Other factors for children’s claims: Courts also look at things like the child’s financial need and the size of the estate. A wealthy adult child might have a weaker moral claim if their siblings or the surviving spouse are of modest means. Conversely, a child facing financial hardship or a disability has a stronger case that an “adequate, just and equitable” provision would include something for them. The contributions of a child to the parent’s wealth or care are also very important. If a child helped build up the family business or took care of an ailing parent for years, and then the parent’s will doesn’t adequately acknowledge that, courts often find it unfair. For example, courts have been willing to vary wills in favor of children who contributed to the estate or provided significant care, recognizing an enhanced moral obligation in those cases. In one case, a daughter who had moved in to care for her elderly mother and helped maintain the mother’s home was awarded the house in a will variation, even though the will hadn’t left it to her.Overall, an adult child in BC who was left out or undervalued in the will stands a good chance of getting a share or an increased share through a wills variation claim; as long as they can counter any reasons the parent gave for the disinheritance and show that fairness was not met. Many such cases result in the child receiving a portion (sometimes a significant portion) of the estate, though not always an equal share. For instance, a disinherited child might be awarded something like 20%, 30%, 50% of the estate depending on the case. Even when successful, the court might not grant a full equal split; it will tailor the award to what is fair given all circumstances. Each family’s situation is unique, which is why outcomes range from nearly the whole estate in some cases to a token sum in others; but the right to challenge is definitely worth pursuing for a child who feels wronged by a will.
- Others (e.g. other family or beneficiaries): If you are not a spouse or child, you generally cannot bring a WESA variation claim. Your only option to contest a will is to attack its validity (capacity, undue influence, etc.), and as noted those can be difficult to prove. For example, if a sibling or a niece/nephew was expecting an inheritance but got nothing, they have no status under WESA. They might attempt an undue influence claim (perhaps suggesting another sibling manipulated the parent), but their odds of winning are typically lower than the odds for a spouse/child with a direct WESA claim. BC courts do entertain these disputes; for instance, siblings litigating that a brother or sister coerced mom or dad into a will; but the evidence bar is high. If you pursue this route, be mindful that an unsuccessful allegation of fraud or undue influence can result in you having to pay costs. (The estate may cover legal costs for all sides if a claim has merit, but baseless claims are discouraged; one case even warned of special cost penalties for unsuccessfully alleging fraud with no evidence.)
Key Factors That Influence Your Chances of Success
From the discussion above, it’s clear that several key factors will determine your likelihood of success in contesting a will in BC:
- Your Relationship to the Deceased: This is fundamental. A disinherited spouse or child has far stronger legal standing and a defined route to success (via wills variation) than anyone else. Being a spouse (married or common-law) gives you perhaps the best odds of winning; BC courts almost invariably ensure spouses are adequately provided for. Being a biological/adopted child gives you a solid chance as well, though outcomes vary based on parental reasons and your circumstances. If you are another relative or a beneficiary who is upset with the will, your chances hinge on proving misconduct (influence, etc.), which is tougher. In short: spouses and children have a built-in advantage under BC law.
- Reasons for Disinheritance or Unequal Shares: The presence or absence of a valid reason for how the will was written is critical in WESA variation cases. If the deceased left a note or evidence of reasons; e.g. “I am leaving less to my daughter because I already gave her a large gift” or “I’m disinheriting my son due to our estrangement”; the court will weigh those. Valid, rational reasons (such as misconduct by the child, or significant lifetime gifts given) can reduce your odds of success as a child claimant. If no good reason is evident (or the reason is trivial or based on unfair prejudice), your odds improve significantly. For example, wills based on discriminatory beliefs (like favoring sons over daughters purely due to gender) will not hold up; BC courts have varied wills that were found to be motivated by outdated biases, since those reasons aren’t considered valid or moral by today’s standards. In one case, a will-maker’s blatant gender-based inequality among children was overturned and rebalanced by the court for being contrary to modern moral obligations (the will had to be varied because it gave sons far more than daughters for no reason other than gender).
- Financial Need and Circumstances: The financial situation of the spouse or child claimant matters. While a spouse doesn’t need to prove need per se, obviously a spouse in dire financial straits has a compelling case for support from the estate. For children, the court often considers whether the child is struggling or well-off. A child with a disability or low income presents a strong moral claim; it will seem clearly unfair if a wealthy parent left them nothing, and courts will likely rectify that. On the other hand, a very wealthy adult child may not be awarded much if the estate is modest and other beneficiaries have greater need. Need isn’t the only factor, but it’s part of the “adequate provision” analysis of what’s fair. Likewise, if the spouse or child lived a certain standard of living supported by the deceased, the court aims to allow them to maintain that standard. For instance, a widow who was dependent on the deceased’s income would be expected to receive enough from the estate to continue a reasonable lifestyle.
- Contributions and Care (Expectations Created): If the contestant contributed to the deceased’s wealth or welfare, this boosts their odds. Perhaps you worked in the family business for low pay expecting to inherit, or you invested sweat equity in maintaining the deceased’s property, or you provided years of caregiving to an aging parent. The courts view these as enhancing your moral entitlement. A common pattern is an adult child providing extensive care or financial support to the parent; courts have in many cases varied wills to compensate that child more for their contributions. In contrast, a child who had little involvement or whom the parent barely knew (absent the parent’s fault) might have a weaker claim.
- Strength of Evidence: Especially for validity challenges (capacity, undue influence), evidence is king. Medical records, witnesses who can speak to the will-maker’s mental state, documentation of who was around the will-maker leading up to the will, suspicious circumstances (like a radical change in the will benefiting a non-family caregiver); all these pieces of evidence will impact the outcome. If you have solid evidence (say, doctors’ letters diagnosing advanced dementia around the will date, or emails showing a beneficiary actively dictating the will-maker’s decisions), your chances of winning go up tremendously. Without evidence, courts are unwilling to overturn a will on speculation. BC courts err on the side of upholding a formally valid will unless convinced otherwise. Keep in mind, if you allege something like fraud or undue influence and fail to prove it, there can be cost consequences; the courts discourage speculative challenges. Therefore, evaluating the evidence beforehand (often with an estate lawyer’s help) is crucial in predicting your odds.
- Family Dynamics and Conduct: The history of the family relationships can sway a case. A child who was abusive or totally absent (by their own choice) may be seen as less deserving; the court might find the parent was justified in cutting them out. On the flip side, if a parent’s harsh behavior or unreasonable beliefs caused a rift, the child shouldn’t be penalized for that. Judges do look at who “was at fault” in estrangements or conflicts. Also, if one beneficiary is perceived to have manipulated or isolated the will-maker from others, that will heavily favor the challengers’ case (both for undue influence and morally for variation). In essence, the more a situation “smells unfair”, the more likely a judge will intervene; if the situation seems understandable or the will-maker’s choices seem justified, a challenge may fail.
- Size of the Estate: The larger the estate, the more room there is for a court to rearrange things and still leave everyone with something. High-value estates often see more challenges, both because more is at stake and because providing a family member a share might still leave others with plenty. Conversely, in a very small estate, a judge might be reluctant to vary a will too much (especially if, say, providing for an omitted child would severely reduce what a needy spouse or other dependent gets). Big estates also attract litigation; as one lawyer noted, with more wealth being transferred between generations now, people are more willing to “take a shot” at making a claim when significant money is involved. Rising property values in BC have indeed contributed to an increase in wills variation claims in recent years.
- Legal Costs and Process Considerations: While not a factor in whether you win, it’s worth noting that estate litigation can be expensive and emotionally taxing. The good news for claimants is that, in BC, if your claim has merit, often the estate covers the legal costs; even if you don’t win outright, the court sometimes orders that your reasonable legal fees be paid from the estate (especially in wills variation cases or if there was a legitimate question to be decided). However, if the court thinks your claim was frivolous or devoid of merit, they can make you pay costs. This cost framework means bona fide claimants aren’t necessarily penalized for trying, but it’s still something to weigh. Also, the vast majority of these disputes settle out of court through negotiation or mediation. A settlement might give a partial win (e.g. the child gets something but not as much as claimed) without the risk of a total loss at trial. The possibility of settlement is high, because litigation is unpredictable and costly; all sides often prefer a negotiated compromise.
Perspectives: Spouses vs. Children vs. Other Heirs
To summarize the different perspectives and odds:
- Spouse (including common-law): Strongest position. If you were left out or given less than about half, you have an excellent chance of success in BC. The law’s clear objective is to ensure spouses are adequately provided for. Only in rare cases (like already having wealth from the deceased outside the will) would a spouse’s challenge fail. Essentially, disinheriting a spouse in BC is very difficult; most such wills get varied by the court to give the spouse a large share.
- Child (including adult child): Generally a good chance, but with more variables. The court will nearly always grant something to a completely disinherited child if there’s no valid reason for it. If the child was in a normal, decent relationship and got cut out, odds of winning a share are high. If the child received significantly less than siblings without explanation, that’s often fixed by the court as well. However, if the parent had justifiable reasons (child’s bad conduct, estrangement caused by the child, prior gifts given, etc.), the child may either get a reduced share or none at all. Each case balances the parent’s reasons against societal norms. So an adult child’s chances of success are moderate to high when the disinheritance seems unfair or inexplicable, but can drop to low if the disinheritance was deemed warranted by the child’s own actions.
- Disinherited Heir (other than spouse/child): For anyone who isn’t the spouse or child, the odds of success are generally low. BC law doesn’t give you a direct right to a “fair share” if you’re, say, a brother, niece, or grandchild (unless that grandchild was basically a stand-in child dependent, which is unusual). You would need to pursue a validity challenge (undue influence, lack of capacity, etc.). Those can succeed but require compelling evidence of wrongdoing or incapacity. So while not impossible, such a person faces a steep uphill battle. Many decide not to pursue it unless there are strong red flags (e.g., an elderly parent with dementia suddenly leaving everything to a new friend/caregiver; a sibling might challenge that for undue influence with some chance of success).
Beneficiaries defending a will: It’s also worth flipping the perspective. If you are a beneficiary trying to uphold a will against a challenge, note that you may bear the burden of proof in undue influence cases now (because of the WESA s.52 burden shift). To defend the will, you’d want to show the will-maker was of sound mind and free will, and perhaps that they had rational reasons for their decisions. The estate usually pays the legal costs of defending a will, but if you are found to have clearly taken advantage of a vulnerable will-maker, not only could you lose some or all of your inheritance, you might face costs consequences. The court can even order special costs against someone who unduly influenced a will-maker, as a deterrent, in egregious cases.
Final Verdict
In conclusion, the chances of winning a contested will case in BC depend on aligning your situation with the legal grounds that BC courts recognize and having the evidence to back it up. If you are a spouse or child with a seemingly unfair outcome, BC law is on your side to ensure you get what’s “adequate, just and equitable”.
If you suspect a loved one’s will is invalid due to pressure or incapacity, the courts provide a route to challenge that as well, though you’ll need clear proof. Given the complexity of these cases, it’s advisable to consult with a BC estate litigation lawyer, who can assess the specifics and give you a realistic idea of your odds. They can help you strategize; whether that’s negotiating a settlement or fighting in court; to achieve a fair result.
Contesting a will is never easy, but with BC’s favorable laws for spouses and children, you may have a better chance than you think of winning a will challenge in BC.
FAQ of Odds of Winning a Will Contest in BC
A) Will contesting a will in BC require going to court, or can it be settled?
Ans: Many will disputes in BC are settled out of court. In fact, BC encourages mediation for estate disputes. It’s common for families to reach a settlement agreement after everyone lawyers up and sees the evidence. Settlements can save time, money, and heartache, and you have control over the outcome (versus a judge deciding).
However, if a fair settlement can’t be reached, the case will go to court for a judge to decide. As a claimant, you should be prepared for either outcome. A good lawyer will attempt settlement where reasonable, but also be ready to fight it out in court if needed.
B) If I lose the will contest, what are the consequences?
Ans: If you take a will contest to court and lose, a few things happen.
First, the will remains as is (or is validated), so the estate will be distributed according to that will, and you won’t receive anything beyond what it gave you (if anything).
Second, costs: BC courts typically award “costs” to the successful party. This means you might be ordered to pay a portion of the other side’s legal fees. In some estate cases, especially where it was a close call or a novel issue, a court might decide each side bears their own costs or the estate covers it, but you shouldn’t count on that.
The risk of having to pay the winner’s costs is real. It’s one reason to make sure your case has merit before proceeding. It’s also another reason why many cases settle (often the estate may agree to each side paying their own costs as part of a deal, etc., to avoid that scenario). Always discuss the risk of cost consequences with your lawyer so you’re not caught off guard.
