Even if not named in the Will, you may still rights to a portion of a deceased person’s estate. There are several bases that allow a person to claim against an estate even if they are not given anything in the Will.
It is important to understand that claims against an estate can be complicated. It is therefore important to get legal advice as early as possible. If you do not get early advice, you could lose a legal advantage or miss documenting evidence crucial to your case.
Who can challenge a will?
The first thing to consider is your relationship to the deceased person whose Will you want to challenge (sometimes called ‘contesting’ a Will).
Creditors
If the deceased owed you money, then you can sue the deceased’s estate for payment. This can be complicated so you should get some legal advice immediately even if you want to represent yourself in the lawsuit against the estate. Getting early legal advice will help you get the case started in the right way. This will save you money and the court time.
Business partners
If you and the deceased were in business together or owned property together then you may need to sue the estate to get what you are owed before the deceased’s property is given out to the beneficiaries as their inheritance.
Promises
Did the deceased promise to give you something from his or her estate? If so you can sue the estate to ensure you get what was promised. However, these kinds of claims are particularly difficult and hard to prove so early legal advice is crucial here as well.
Spouses and children
In British Columbia, the law allows the children and the spouse of a deceased person to challenge a Will. Furthermore, in B.C. a deceased person is legally required to make adequate provision for the proper maintenance and support for his or her children and spouse. In B.C. a court can re-write a Will that fails to do this. This means that the B.C. court has the authority to take money from a beneficiary and give it to a spouse or a child if that is what the deceased person should have done in the first place.
Who is a child?
The definition of child or children is usually straightforward. For a child to have a right to contest a will, they have to be the biological child or legally adopted child of the deceased person. If you are unsure if you fit into this group, it is best to get legal advice right away.
Who is a spouse?
The definition of spouse is much more complicated. Married people are spouses. However, unmarried people can also be spouses: called ‘common-law’ spouses. This is an area of law that is always growing and evolving. Read our recent article on spouses in the estate litigation context, for a more detailed discussion.
How do I contest a will?
If you have a right to contest the deceased person’s will, you would do so by starting a legal action against the deceased person’s estate. Again, suing an estate can be complicated. Even if you want to represent yourself in a lawsuit against an estate, you should get some legal advice so that you get the lawsuit started correctly.
Early legal advice is vital
As mentioned already, early legal advice on your specific situation is crucial. Your legal case has a greater chance of success if you get early legal advice which will allow you to preserve and gather the best evidence in support of your case.
If you wait to defend your estate rights you may lose them because in many cases the law says you have a limited amount of time to start your lawsuit. If you do not start your lawsuit on time, you may lose the right to sue – even if you have a strong case. Ultimately if you wait too long the estate representative will distribute the estate to the beneficiaries as their inheritance – including the portion that should have gone to you. Then it is too late to get your money or property back.
