What if you want to challenge someone’s will? What do you do?
In British Columbia, the Wills, Estates, and Succession Act (WESA) governs the process of challenging a will and provides clear guidelines for when and how to do so.
It’s important to understand these legal frameworks, whether you’re questioning the validity of a loved one’s will or ensuring the legal validity of your own estate plan.
In this guide, we’ll explain the legal grounds for challenging a will in BC, who can contest it, the legal process to dispute a will, and more.
Legal grounds for contesting a will in BC
Contesting a will is not something to take lightly, as it requires valid legal grounds and sufficient proof to convince the court to overturn the testator's wishes.
What are the grounds for contesting a will in BC?
Grounds for contesting a will include improper execution, lack of capacity, undue influence, fraud, and inadequate care of dependants.
Here’s a more detailed breakdown of the different legal grounds for contesting a will in BC:
- Lack of testamentary capacity: The testator, as the person making the will, must have had the mental capacity to understand the nature and effect of making or amending their will, the extent of their assets, and the claims of potential beneficiaries.
- Example: If the testator suffered from dementia or another cognitive impairment at the time they made their will, it could be valid grounds to challenge it.
- Undue influence: The will may be invalid if someone exerted pressure on the person making the will, or manipulated them to create or change their will in a way that did not reflect their genuine intentions.
- Example: The testator’s caregiver persuades them to leave the bulk of their estate to the caregiver, overriding the testator's free will and cutting other loved ones out of their estate.
- Fraud or forgery: A will can be contested if it can be proven that fraudulent activities, such as forgery, misrepresentation, or deceit, were involved in the creation or execution of the will.
- Example: Someone tricks the testator into signing a document, not knowing that the document is actually a will.
- Invalid will: Legal wills in BC must be in writing, signed by the testator, and witnessed by two valid witnesses. A will created outside of these legal requirements is not considered valid and can be contested in court.
- Example: The testator created an online will, printed it, and signed it without witnesses. This would make the will invalid.
- Exception: BC is currently the only province in Canada that allows digital wills. To be legal, digital wills must be created, signed, and witnessed entirely online. Learn more here.
- Inadequate care of dependants: A spouse or dependent child can challenge a will if they believe it does not adequately provide for their proper maintenance and support.
- Example: The testator passes away and leaves their entire estate to charity, despite their child being financially dependent on them.
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Who can contest a will in BC?
Under BC laws, you must be one of the following to have the valid legal standing to contest a will.
- Spouses: Includes both legally married spouses and common-law partners who have lived together for at least two years.
- Children: Both biological and adopted children of the deceased
- Dependents: Individuals who were financially dependent on the deceased
- Beneficiaries: Beneficiaries of the current and previous wills
- Creditors: Individuals or institutions that the deceased owed debt(s) to
Can an estranged child contest a will in BC?
Yes, though it may be more challenging to claim a part of an inheritance if the estranged child is not a minor or a dependent of the deceased.
What is the time limit for contesting a will in BC?
You must file your claim within a certain time limit to properly challenge a will. If you fail to meet these deadlines, you forfeit your right to contest the will and the court may refuse to hear your claim regardless of its merit.
Time limits by scenario
Learn more about BC probate rules →
How to dispute a will in BC
There are a few steps involved in contesting a will in BC:
1. Gather evidence in support of your claim
In BC, depending on the type of claim against the will, the burden of proof may either fall to you, the claimant, or to the executor, as the legal representative of the testator, to provide evidence for or against the claim.
The type of evidence required depends on what type of claim you’re making:
2. File your claim in court
To officially begin legal action against the deceased’s estate, you must submit your claim to the Supreme Court of British Columbia within a designated timeframe.
If you are making a claim for inadequate care of dependents, you need to file a Notice of Application to the courts.
If you are making any other claim against the will, you will need to file a Notice of Dispute.
You can find these notice forms on the Government of BC’s website.
3. Notify relevant parties of your claim
When there is a claim against the estate, the executor must stop the settlement process to address it. The best practice is to notify the executor and estate beneficiaries that you have made a claim against the estate as soon as possible.
4. Attend mediation sessions or go to trial
After notifying the executor, you have three options: family mediation, settlement negotiations, or trial.
If mediation or settlement is not possible, then your case will go to trial.
In a trial, you’ll be responsible for presenting your case. If you have the burden of proof, you must also present all your evidence to the court in support of your claim.
5. Accept or appeal the court’s decision
Based on the trial, the court can either uphold the validity of the will, reject it entirely, or suggest modifications. The court will give instructions on how to proceed with the distribution of the estate depending on which verdict they reach.
If you think there was a mistake during your trial, you may be able to appeal the verdict. Appeals focus on possible errors in how the law was applied—they’re not just a disagreement with the outcome.
The appeal process requires you to submit a Notice of Appeal within 30 days of the court’s decision.
Common challenges in contesting a will
Challenging a will comes with legal costs, and it requires you to understand BC laws, the valid grounds for challenges, and how to properly gather evidence to support your claim.
Will challenges can also cause emotional stress when family members and loved ones are grieving. Contesting can start family disputes, strain relationships, and distract from your own grieving journey.
If you’re considering contesting a will, you may want to seek professional legal advice.
Legal representation and costs
If you choose to work with a lawyer when you’re contesting a will, you will either be charged a flat fee for your case or at an hourly rate.
The lawyer will pay the probate court fees, fees to serve documents, and expert witness fees and add them to their bill at the end of the case.
If you don’t use a lawyer, you will be responsible for covering these costs yourself, and if you win the case, your costs will be reimbursed by the estate.
Read more about the costs of making and executing a will in BC →
Outcomes of a contested will case
There are three possible outcomes if your case goes to trial.
Alternatives to contesting a will
If you’re hesitant to contest a will in court, family mediation for wills or settlement negotiations may help.
Pros and cons of these alternatives
Mediation involves an impartial third-party mediator who facilitates your discussion with the executor and beneficiaries of the estate.
- Pros: Voluntary, confidential, faster and less expensive than trial, and preserves family relationships
- Cons: May not result in a fair agreement if one party takes over the discussion, and agreements may be denied later unless they are documented in writing. If parties cannot agree, going to trial may be unavoidable.
Settlement negotiations involve direct discussions, often with lawyers or executors, between you, the executor, and estate beneficiaries.
- Pros: Voluntary, confidential, faster and less expensive than trial, and preserve family relationships. Legal counsel also helps make sure each party is properly represented.
- Cons: If parties cannot agree or one party acts in bad faith, trial may be unavoidable. Having legal counsel makes this more expensive than mediation.
Make sure your will is defensible
Any will can be contested, whether it’s prepared by a lawyer or made with an online platform like Willful. It’s important to remember that no challenge can go forward without valid grounds.
To help you make your will legal and defensible, all Willful documents are created using clauses from estate lawyers in BC. And, as part of the Law Society of BC's Innovation Sandbox program, Willful also provides virtual witnessing for digital wills.
So long as you make your will according to BC’s requirements, which include proper signing and witnessing, your will is legal, valid, and defensible.
By using platforms like Willful to create your legal will and power of attorney documents, you can reduce the likelihood of disputes and provide peace of mind for your loved ones.
