Challenging a Will

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Hugh McLellan, McLellan Herbert in October 2018.

It could be you’re shocked or disappointed by what a will says. Or you might believe the will doesn’t represent the true intentions of the deceased. In such cases you may be able to challenge it. There are different ways to do this. Learn about some common grounds for challenging a will, and what’s involved.

What you should know

You can challenge the fairness of your spouse or parent’s will

If your spouse or parent passed away, and you’re unhappy with what they left you in their will, you can challenge it in court. You may feel you didn’t receive a fair share. Or maybe they didn’t leave you anything at all.

A will-maker is generally allowed to divide their property however they want. However, under the law in BC, a spouse or child of a will-maker who has passed away can challenge the will in court if they feel it doesn’t “make adequate provision for the proper maintenance and support” for them. This is called a wills variation claim.

If you’re a friend or relative (other than a spouse or child), you may be disappointed with what you got or didn’t get under a will. You cannot make this type of claim. However, there are other ways you can challenge the will, which we’ll explore below.

You don’t have to be married to be considered a spouse

Under estates law, you are a deceased person’s spouse if you:

• were married when they died, or
• lived with them in a marriage-like relationship for at least two years immediately before they died.

Children can be biological or adopted

You’re entitled to make a wills variation claim against your parent’s estate if you’re their biological child (of any age, born either within or outside of marriage). Or if you’re legally adopted.

Otherwise you aren’t. As their stepchild, for example, you can’t make a wills variation claim. Nor can you make a claim if you’re a biological child but someone else adopted and raised you. (Unless that person was your parent’s spouse.)

There are other ways you can challenge what the will says

Only the spouse or child of the will-maker can challenge an otherwise valid will for being unfair or inadequate with a wills variation claim. But there are other reasons you may want to challenge how the estate should be distributed. If you have an interest in the estate, you can challenge a will because:

• The will-maker wasn’t mentally capable when or they made the will. We explore this below.
• Someone unduly pressured or influenced the will-maker. We also explore this below.
• There was a mistake in the will. The will-maker may have gifted something they didn’t intend to, because of a mistake by them or their lawyer. The mistake may be due to fraud or it may be accidental. The law gives the court wide powers to rectify (that is, fix) a mistake in a will. (For example, to re-insert a word that was left out).
• The will-maker revoked (that is, cancelled) their will.
• The language used in a will is vague or uncertain. The executor may have to apply to court to have the will interpreted. For example, the will may make a gift to a charity that doesn’t exist.
• The will-maker failed to provide for an individual in their will. Consider a spouse who pitched in to help buy property that was registered only in the deceased’s name. Or an employee who worked in the will-maker’s business for little or no pay. Such people may have expected that their role in “enriching” the will-maker would be reflected in the will. If you want to challenge a will for similar reasons, speak to a lawyer about making constructive trust claim or an unjust enrichment claim.

If you think the will-maker wasn’t capable of making the will

If you think the will-maker didn’t have the mental capacity to make a will, you can challenge it in court. This type of challenge is common with wills created late in life. Or when the will-maker had an illness that could have affected their judgment.

A person can be eccentric or suffer from a mental disorder and still be able to make a valid will. However, they must have testamentary capacity. This means they must be able to:

• understand they’re making a will
• understand that the will determines what will happen to their property after they die
• appreciate the nature and value of all of the property they own, including what will pass through and outside of the will
• understand who their next-of-kin are and appreciate that their will should, if possible, provide for their spouse and children and not unfairly exclude them

If someone unduly pressured or influenced the will-maker

Seemingly unreasonable terms in a will can raise the suspicion that the will-maker was pressured, forced or influenced into making them. The court can disallow any gift or inheritance if it was given because of undue influence on the will-maker. In these cases, the will is not considered a reflection of the will-maker’s true desires.

Most people exert some level of influence over those they love. There’s nothing illegal in suggesting to someone that they remember you in their will. But if you threaten to, say, stop taking care of them if they don’t leave you a larger share of their estate, that’s undue influence. Similarly, you can’t:

• threaten or use violence
• use heavy persuasion on the will-maker in the final days of their life
• mentally exhaust them to the point they agree with your requests
• isolate them
• continually bad mouth your siblings to get your parent to write them out of the will

Understand the legal process

There are time limits to making challenges

There are deadlines, called limitation periods, that must be met if you want to challenge a will. If you miss the deadlines, it may be too late. If you want to make a claim, you should talk to a lawyer immediately.

A wills variation claim must be started within 180 days from the date the grant of probate or administration is issued by the probate registry. (The grant confirms the will is legally valid and can be acted on.) If a wills variation claim is brought more than 180 days after the grant is issued, the opportunity to bring a legal action to change the will is likely lost.

If you’re thinking of contesting the validity of a will because of mental incapability or undue influence, there’s generally a two-year limitation period to bring your claim. This means you must start your legal action within two years from the date you know — or should have reasonably known — that you have a claim.

The court considers several factors when deciding whether a will is fair

If you make a wills variation claim, the court can decide to change the will if they think it’s fair to do so in your particular circumstances. The court will consider many things when making this decision, including:

• the will-maker’s reasons for distributing their assets as they did
• the value and nature of the will-maker’s money and property
• your financial circumstances
• the financial circumstances of the other beneficiaries
• the nature of your relationship with the will-maker
• whether you financially depended on the will-maker and to what extent
• any assets passing outside of the estate to you or to others
• any gifts they made to you or others during their lifetime

The court considers what a reasonable will-maker would have done

If the will reflects irrational anger or favouritism or ignores the genuine needs of the will-maker’s spouse or children, without good reason, the court may change the will to make it fairer. The court can order that the estate provide for the spouse or children in a way that is “adequate, just and equitable” in the circumstances.

Adult children

The courts have generally found that there’s a moral obligation to provide for independent adult children if there are sufficient assets. But sometimes a will-maker’s reasons for leaving their adult child out of the will are valid and rational. In that case the court may say there was no such obligation.

If an adult child with a disability is left out of the will, the court may find there was a moral and legal obligation to provide for them. Sometimes such children are left out of the estate for well-meaning reasons, such as a fear that the money would reduce or stop the adult child’s social-assistance benefits. But that isn’t always how things go. It’s a good idea to consult a lawyer to ensure your dependent adult child gets the maximum amount of money they can.

The court may find that the will-maker wasn’t capable when they made the will

If a court finds that the will-maker was not mentally capable when they made their will, it may decide the will isn’t valid. In these circumstances, if the will-maker:

• didn’t have a previous will, their estate will be divided according to BC law, or
• had another will, then their most recent valid will — made when they were mentally capable — applies

If the deceased made a written record of how they wanted their estate to be handled — when they were mentally capable — the court can consider it to help learn the deceased’s intentions. This can give documents such as emails, letters, and text messages the same authority as a valid will. The court can then order the estate be distributed based on what they believe the deceased wanted. This part is relatively new to BC’s wills and estates law — so far, courts have been conservative in interpreting it.

The court will cancel a will if there was undue influence or coercion

The court will cancel any will it believes was made under undue influence or coercion. If it’s shown that a person was in a position where they could have dominated the will-maker or made the will-maker depend on them, then that person will have to prove they didn’t unduly influence the will-maker.

Common questions

Do I need to see a lawyer?

If you have a problem like the ones described, you should see a lawyer. These kinds of disputes are typically complex. Your best chance of success is to have an expert take you through the legal process. A lawyer will tell you what steps to take, including what documents you’ll need to file with the court.

When trying to find a lawyer to take your case, feel free to shop around. Ask each lawyer how much it’ll cost. You should be able to get some free estimates. Some lawyers may agree to take a percentage of any amount you receive from the estate as a result of a successful challenge. This is called a contingency fee arrangement. With this type of arrangement, a lawyer will only charge you legal fees if you win the case. Many lawyers will still require you to pay certain expenses called disbursements even if you’re not successful.

What if someone dies without a will?

If someone dies without a will, their estate is distributed according to the law. Generally, the estate goes to the spouse, children, or descendants (for example, grandchildren) of the deceased. If there’s no spouse or descendants, the estate will go to other relatives. Our information on when someone dies without a will explains in more detail how an estate is divided if there is no will.

What if I want to leave my spouse or child out of my will?

If you’re thinking of leaving a spouse or child out of your will, or leaving them less than they might reasonably expect, see a lawyer. Our information on making a will and estate planning explains this in more detail.