British Columbia wills and estates law is unusual among all of Canada’s provinces. It is the only province which allows a spouse or child of the will maker to challenge that will if it fails to “make adequate provision for the proper maintenance and support for them.” If the courts find that adequate provision has not been made, the judge may order a variance.
Furthermore, “proper maintenance and support” is generally calculated in relation to the resources available to the willmaker. For example, a $200,000 award might might the needs of an average person for years, but if the willmaker had a $20 million estate to divvy up the courts might not rule that “adequate provision” was indeed made. This is because while there’s no legal obligation to provide for adult children, there is nevertheless, under BC laws, a moral one.
Disinherited Children in British Columbia
Sometimes, parents try to disinherit their children. This situation arises a great deal in cases where South Asian parents disinherit daughters due to cultural issues. In one landmark case, adult twins who were disinherited by their father were granted 70% of his estate instead.
In order to disinherit a child, the willmaker must show reasons that are valid, rational, and consistent with modern Canadian values. A child can be disinherited if the child and the parent are estranged, for example, or engaged in criminal behavior. Usually the willmaker must prepare a document that details the reasons for the disinheritance.
Who may challenge a will in BC?
The will may be challenged on a number of grounds, not just on the grounds that the willmaker has failed to make adequate provisions for their children or spouse.
You may challenge the will if you are:
- The spouse of the willmaker.
- The child of a willmaker.
- Other potential beneficiaries who might benefit from intestacy laws if the will is declared invalid.
In British Columbia, disinherited spouses and children usually serve as the challengers.
How to Contest a Will in British Columbia
You will need to have your lawyer file a Notice of Objection prior to the completion of the probate process. A grant of probate certifies that the will is valid, so if you feel like the will is not valid you’ll want to have the court look at the relevant issues before the process is complete.
You have six months from the date of the will entering probate to proceed with your Notice of Objection, and there is a two year statute of limitations for contesting the will.
Challenging a will can lead to several outcomes. The court can uphold the will, vary the will, overturn the will, or declare the will invalid. If the court varies the will, they’ll make changes to bring it in line with the Wills, Estates, and Succession Act. This usually happens in cases where sufficient provisions haven’t been made for spouses or adult children.
If they overturn the will they will revert the will to an earlier version. If they declare the will invalid or there is no earlier version, then it will be as if the willmaker died intestate and the will will be administered under WESA.
On what grounds can a will be challenged in BC?
In British Columbia, the will can be challenged on the following grounds.
- The deceased failed to make adequate provision for spouses and children.
- The willmaker did not have knowledge and approval of the will’s contents.
- A person has influenced the willmaker through force, fear, or coercion, known as undue influence.
- The willmaker did not have the requisite mental capacity to write the will.
- The will is ambiguous, unclear, or vague.
- The will was not executed properly.
When you meet with our wills and estates lawyers we will work with you to determine if you have grounds to challenge a will and sufficient evidence to make your case.
You may not challenge the will simply because you don’t agree with the way the will was written, or feel that you were promised something different than the will delivered.
How long does it take to contest a will in BC?
You can expect the entire process to take 12 to 24 months. It depends on what the court backlog looks like, the size of the estate, and whether it’s possible to locate all of the beneficiaries.
Once the process is complete, it will also take some additional time for the executor to distribute the proceeds according to the court’s instructions.
Who pays for contesting the will?
Often, the losing party will pay the court costs. The costs don’t usually come out of the estate. However, the court has the discretion to make this order.
The costs most often come out of the estate when there’s an issue about the meaning or validity of the will. In such a case the court tends to believe all interested parties have a right to be heard without having to pay if things don’t go their way.
Costs for proper maintenance and support issues will generally go to the losing party.
Is contesting a will worth it?
You are the only person who can ultimately make this determination, but you shouldn’t do so without speaking to a wills and estates lawyer. There are important questions to be asked. What do you stand to gain? What standing do you have in the estate? What evidence do you have for your case?
Estates law is extremely complex and you can’t really make educated guesses after reading one article on the Internet. All you can do is get a broad overview of whether it might be profitable to sit down for a consultation.
Need help challenging a will?
Contact us to meet with an experienced wills and estates lawyer who will look over the will, the estate, and the validity of your case. We can answer your questions and help you determine whether it makes sense to proceed.