“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:
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:
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 This approach is cost-effective and probate cannot be granted until the objection is withdrawn or removed.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.
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.
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
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.
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