How Do I Contest a Will in BC?
“How do I contest a will in BC?”
At Spraggs Law, our estate law specialists field this question often. That’s why we’ve dedicated today’s blog to detailing everything you need to know about how (and when) to contest a will in British Columbia.
There are two main ways to “contest “ a will:
- Challenging the validity of the will;
- Seeks a variation of the will; and
This article will be focused on challenging a will based on its validity, i.e. it does not meet the formal requirements or was drafted or executed under questionable circumstances.
Variation of a will will be addressed in a separate blog. Suffice to say, varying a will concerns the fairness of the distribution of assets as opposed to the validity of the will.
Let’s dive in:
#1: The Process
In B.C., it is common to apply to the court for a grant of probate with respect to a will. The grant is viewed as certification by the court that the will is valid. While a will is technically effective upon the willmaker’s passing, the grant of probate is required by most financial institutions and government bodies as a matter of due diligence and protection from liability. In other words, banks, insurance companies, pension plans, etc. are unlikely to allow the executor or administrator to access estate assets until probate is granted.
While one can challenge the validity of a will after a grant of probate, it is preferable to do so prior to the grant. This is to prevent the estate assets from being transferred, which is always an active risk once probate is granted.
The validity of a will is presumed unless disputed by an interested party. Some form of legal proceedings must be commenced to challenge the validity of the will. While not the only way, the most common way to challenge the validity of the will is to file a Notice of Objection after a probate application has been filed. This approach is cost-effective and probate cannot be granted until the objection is withdrawn or removed.
Please note however, that the Notice of Objection does not determine the validity of the will. It simply freezes the probate process until the validity issue is addressed. The actual court procedure to make a final and binding determination on the validity of a will is called proof in solemn form, which requires the executor to prove that the will is valid. It is important to seek legal advice before taking such a step as there are potentially severe financial consequences for a failed attempt, which could be construed as unnecessary delay of the estate’s administration and wasting of estate resources.
#2: There are 4 Common Grounds to Dispute the Validity of a Will
- That undue influence or coercion was exerted on the testator: This is seen as when there are questionable circumstances suggesting the contents of the will do not reflect the testator’s true intentions, e.g. elder abuse or fraud.
- That the testator lacks capacity: This is when the testator lack the necessary mental capacity to instruct a lawyer or draft the will. For example, someone who suffers from dementia or severe brain injury. Dispute of this nature usually require expert medical evidence.
- The formal requirements of a will are not met: in B.C., a valid will needs to meet some formal requirements such as being signed and witnesses. A will that does not meet the formal requirements may be invalid. However, depending on the nature of the inadequacy and the circumstances, the court may be willing to overlook some flaws. For example, there has been some recent decision where the testator passed away before finalizing the will due to COVID interruptions and the court still enforced the will.
- That there are issues with the physical appearance of the will: some issues with the physical appearance of the will such as missing page numbers, interlineations, handwritten changes etc. could be cause to investigate the validity of the will. The authenticity of the testator’s signature on the will or the missing of the origninal would also be concerns falling into this category.
#3: What Happens if a Will is Found to be Invalid?
A invalid will is of no force. Sometimes a will is only partially invalid and the remainder of the will can still be effective. Other times, the entire will is invalid, then it may be that the estate will be administered in accordance to a prior will or some other form of testamentary instrument.
In situation where there is no valid wil or testamentary instrumentl, the estate will be administered under the instestacy provision under the Wills, Estates, and Successions Act.
#4: There are Some Important Exceptions
There are some very important exceptions to the general legal principles relating to the validity of a will. For example, there are special rules and legal principles that may apply to deceased who were first nations or persons or members of armed forces who died in active duty. B.C. has also recently recognized electronic wills which adds another layer of complication
How Spraggs Law Can Help You Contest a Will in BC
Spraggs Law offers legal help to those living in BC regarding navigating estate law, as well as offering representation should the need arise.
Give us a call at 604-359-1627 to discuss how we can offer personalized assistance regarding contesting a will in BC based on your unique needs.