Have you been disinherited (cut out of a will)? Has a loved one died without a will (“intestate”)? Do you have a right to a portion of the estate even if you are not formally married to your common-law spouse? Can adopted children claim against an estate? Was the will signed under suspicious circumstances including close to the date of death? Was the will-maker mentally aware when they gave instructions and signed the will? Did someone pressure the will-maker into signing the will? Is someone accusing you of doing something illegal with the will-maker’s will or estate?
Is a will is unfair? Have you been disinherited so that you get nothing (or very little) inheritance? Is someone trying to change the will that you want to protect? Are you responsible for the estate and people are pushing you to give them more out of the estate? Legatum can help. Legatum represents spouses, common-law spouses, and children of a deceased person, as well as the executor or administrator of the deceased person’s estate. Our team can assist you in determining how a court might interpret a will and can represent your interests in court if necessary.
In situations where the will was drafted right before death, under suspicious circumstances, or if there is something wrong with the way the will was written (perhaps a do-it-yourself will kit) then the very legitimacy of the will can be challenged. Legatum can assist you in determining what the strengths and weaknesses of the will are and can vigorously represent you in court if required.
When a person dies without a legally valid will, it is called “intestacy”. When a person owning property in British Columbia dies intestate, the Wills, Estates and Succession Act governs how the deceased person’s property is to be divided. Legatum can assist you in understanding what your rights are to the property and can go to court to enforce those rights if necessary.
Will Disputes FAQs
How Long Does Someone Have to Contest a Will in BC?
In BC, a spouse or child of the testator/Will-maker has 180 days (approximately 6 months) from the date of the grant of probate to contest a Will as being unfair.
Please note that the only person(s) that have a right to contest a Will as being unfair are the spouse, biological child, or legally adopted child of a deceased person.
Validity of the Will
If a person with a claim against the Will-maker’s estate wants to claim that the Will is not legally valid, this claim must be made within 180 days from the grant of probate. However, this deadline may be extended in some circumstances.
Debts the deceased person may owe
An estate representative must wait 210 days (approximately 7 months) from the grant of probate before distributing the estate to the beneficiaries. However, the creditor should make the claim as soon as possible because, in some situations, an executor is permitted to distribute a portion of the estate before the 210 days are up. A creditor’s chances of getting paid are better if they make their claim before the estate is paid out.
It is important to note that if you are considering contesting a Will, it is best to seek legal advice as soon as possible to ensure that you do not miss this deadline.
What are Some Common Reasons for Contesting a Will?
Reasons for contesting a Will include:
Unfairness – The Will does not make adequate provisions for the deceased person’s children or spouse.
Lack of testamentary capacity – The Will-maker was not of sound mind when they created the Will or when they gave instructions for the Will to be created. Therefore, the Will is not legally valid. This can include situations when the Will-maker suffered from dementia, mental illness, or was under the influence of drugs or alcohol at the time the Will was created.
Undue influence – The Will-maker was coerced, manipulated, or pressured into making the Will in a certain way. This can include serious pressure from family members, friends, or caregivers.
Lack of Knowledge or approval – The Will-maker did not understand or approve of the Will because of a lack of mental capacity, fraud, forgery, or some other form of deception. For example, falsifying the signature of the person who made the Will or altering the contents of the Will without the person’s knowledge or consent would make the Will invalid.
Improper execution – The Will was not properly executed and does not meet the legal requirements for a valid will. This can include a lack of witnesses or not being properly signed and dated.
Who Can Contest a Will in BC?
In BC, certain individuals and organizations may have the right to contest a Will. These individuals include:
The spouse or children of the deceased Will-maker – The spouse, biological child(ren), or legally adopted child(ren) of the Will-maker can contest a Will if they believe that it does not make adequate provisions for them (i.e. is unfair to them). Please note: the deceased person’s parents, step-children who have not been legally adopted, grandchildren, close friends, or other relatives do not have a right to challenge the Will for fairness. However, they may have some other way to challenge the Will.
Beneficiaries named in the Will – A person who stands to inherit from the Will-maker’s estate can contest the Will if they believe (and have evidence) there is some irregularity in the Will.
Executor – An executor can contest the Will if they believe that it is not legally valid or if they have a claim against the estate. If the executor does not agree with the Will for some reason and wants to challenge the Will, they must resign as executor. This process is also called renouncing. They must resign because an executor’s legal role is to support the Will as drafted. The executor must carry out his or her duties for the benefit of all the beneficiaries and potential beneficiaries as set out in the Will. An executor must not take sides between beneficiaries and must remain neutral in any disputes that arise.
Creditors – A creditor of the Will-maker can contest a Will if they believe that it does not properly provide for payment of outstanding debts.