Challenging a Will

What can you do if you’re disappointed as a beneficiary?

A beneficiary is sometimes unhappy with their share of what they receive under a will. A spouse or child may feel that what they’ve received is less than fair, or they may not receive anything at all.

This script explains your rights and remedies in the following circumstances:

• A will appears to be unfair toward a spouse or child.
• The person making the will may not have had the necessary mental capacity to do so.
• There may have been undue influence or coercion on the person making the will.
• The person died without making a will.

Occasionally someone else, perhaps a friend or other relative (who isn’t a spouse or child), may be disappointed with what they have or haven’t received under a will. They may have a claim in “unjust enrichment” against the estate. A lawyer will need to be consulted. The remainder of this script just deals with a disappointed spouse or child.

First, is the will unfair?

If the testator (i.e., the person who died) has been unfair or unreasonable toward a spouse or child, the court may change the will, even if the will is technically valid. The new Wills, Estates and Succession Act (WESA) gives the court the power to change a will that doesn’t adequately provide for the maintenance and support of the deceased person's spouse or children.

Does “spouse” include a common-law spouse?=

Yes, “spouse" includes a common-law spouse. But to be considered as a spouse, you must have lived with the testator in a marriage-like relationship for at least two years immediately before the testator’s death. Marriage-like relationships between people of the same sex are included, so a gay or lesbian partner can make a claim as a spouse of the deceased if they lived together in a marriage-like relationship for at least two years just before the testator died.

What does the definition of “children” include?

"Children" entitled to inherit from their parent’s estate includes biological children of any age, born either within or outside of a marriage, and legally adopted children. But stepchildren, or children who have been adopted by someone else, aren’t entitled to inherit from their parent’s estate.

What does the court consider?

The court considers many things to see if the will adequately provides for the spouse or children, including:

• the value and nature of the assets of the estate (i.e., the money and property owned by the testator)
• the financial circumstances of the applicant (i.e., the spouse or child asking the court to change the will)
• the financial circumstance of the other beneficiaries
• the character and conduct of the applicant towards the deceased person

The court’s main consideration will be whether the applicant spouse or child was financially dependent on the deceased), and if so, to what extent.

How does the court decide to change the will?

After considering the circumstances, the court may decide to change the will. The court will consider what a reasonable testator or deceased person would have done. If the will reflects irrational anger or favoritism or without good reason ignores the genuine needs of the testator’s spouse or children, the court will probably change the will to correct the situation. The court has the power to order that the estate provide for the spouse or children in a way that is “adequate, just and equitable” in the circumstances.

Next, consider a testator’s lack of mental capacity

Even where a will appears to meet the technical requirements of the law, a court may change the will if it finds that the deceased person lacked the necessary mental capacity to make a will. A person can be eccentric or suffer from a mental disorder and still be able to make a will. But they must have the capacity to:

• understand that they’re making a will
• understand the effect of the will
• appreciate the amount of the property they’re distributing with the will
• understand and appreciate that their will should, if possible, look after their spouse and children and not unfairly disentitle them

What happens to the estate if the testator lacked mental capacity?

If a court finds that the deceased person lacked capacity with respect to any of these elements when they made their will, then the court may decide the will isn’t valid. If the deceased doesn’t have a previous will, this would mean the deceased has no will at all, and their estate will be divided according to WESA. If the deceased person has another will, made at an earlier time when they had testamentary capacity, then this earlier will is the will.

Note, however, WESA now allows the court to look at any record, document, email or text message to see if it accurately reflects the deceased’s testamentary intentions. It can order that the administrator of the estate act according to how the deceased wanted their estate to be distributed, set out in that written recording (effectively making that recording the deceased’s will). It is unclear how the courts will interpret this new provision, but they will probably take a cautious approach. Still, if the deceased made a written record of how they wanted their estate to be handled – at a time when they had testamentary capacity – the court can look at this.

What about undue influence or coercion?

Sometimes a will seems so unreasonable or surprising that it’s suspicious. While there’s nothing illegal in suggesting to someone that they remember you in their will, the court will take away any gift or inheritance in a will that was made because of undue influence or pressure applied to the person who made the will. Undue influence or pressure can range from improper persuasion to a threat of violence.

What will the court do if there has been undue influence or coercion?

The court will cancel the will if it finds undue influence. If it’s established that a person was in a position where they potentially could have dominated the will maker or made the testator dependent on them, then that person has the burden of proving that they didn’t unduly influence the testator.

What happens if the person dies without a will?

The Wills, Estates and Succession Act applies and may provide an inheritance for a child, spouse or other relative of a person who dies without a will. Refer to script 177 on “What Happens When You Die without a Will?”

You should contact a lawyer

If you have a problem like the ones described here, you should see a lawyer. There are “limitation periods” or deadlines that must be met, which can prevent you from enforcing your right if you delay in acting. For example, if a spouse or child feels that the will doesn’t adequately provide for their maintenance and support, they must start their court action within 180 days from the date of the grant of probate (i.e., when the will is accepted by the court).

[updated June 2014]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

(1) A person for whom a trustee holds a trust, or (2) the recipient or intended recipient of property given in a will. See "heir" and "trust."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

The use of force or intimidation, whether emotional or physical, to compel another person to do something; interference with another person's freedom of choice to obtain an outcome, action, or behaviour.

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

A legal remedy when money, services, or other benefits are unfairly received by one person at a corresponding loss to the person providing the money, services or benefits. See "constructive trust."

In law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death.

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

In estate law, a person who has made a will. The feminine form of this word is "testatrix," which is pretty cool. See "estate" and "will."

In family law, an antiquated term referring to child support and spousal support. See "child support" and "spousal support."

(1) A popular misconception under which people believe they are married to each other simply because they have lived together, or (2) a popular misnomer describing the legal relationship between long-term cohabitants. Common-law marriages have never been lawful in British Columbia. See "common-law marriage," "married spouse," and "unmarried spouse."

In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses under the Family Law Act without marrying. See "cohabitation," "marriage," and "spouse."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

Something which can be owned. See "chattels" and "real property."

A party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court applicant also means the person who starts a court proceeding. See also "court proceeding," "application respondent," and "interim application."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

A voluntary transfer of property from one person to another, without expectation of payment or reward. Gifts to one spouse do not usually qualify as family property, and are excluded from the pool of property to be divided. See "donee," "donor," "excluded property" and "family property."

Real property or personal property received as a result of the provisions of a will or under the Wills, Estates and Succession Act. Inheritances do not usually qualify as family property subject to division between spouses. See "family property," "real property" and "will."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.

The process of checking the validity of a will, distributing a dead person’s estate, and settling their debts according to the instructions set out in that person's will. See "estate" and "will."