Wills Lawyer Abbotsford

That depends.

Unfairness

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.

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.

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.

Yes. This is also known as disinheritance, the act of excluding a certain individual or individuals from a Will.  A person may disinherit a spouse or child in their Will if they have valid and rational reasons to do so (as determined by the court).

For example, a parent may choose not to provide any gifts for their child in their Will and instead distribute their estate to another person or a charity.  In this case, the child has been disinherited.

There are many reasons why disinheritance may happen. A parent and child may become estranged, or the Will-maker may simply wish to distribute their estate to a neutral party first. The Will-maker may also wish to leave their estate to their spouse for distribution or leave more gifts to their grandchildren instead of their children.

Disinherited spouses and children have the right to challenge the Will as being unfair regardless of the Will-maker’s intentions.  The courts have the authority to change Will even if it is otherwise valid if they find the Will is unfair.

Every instance of disinheritance is unique and complicated, so it is important to seek legal counsel in these situations.

If you believe that a Will is invalid or unfair, it is important to understand how to contest it. The process for contesting a Will in British Columbia typically involves the following steps:

1. Seeking legal advice from an estate lawyer;
2. Filing a notice of dispute in certain situations;
3. Gathering evidence to support your claim(s);
4. Taking part in a mediation or settlement negotiation to minimize legal expenses; and
5. Attending court if mediation is unsuccessful.

No.  If they have the legal standing to start a claim, they have the right to bring the claim – even if their case is weak.  A person who brings a weak case to court not only risks losing in court but also risks having to pay extra costs to the winning side for bringing the weak case.

However, there are steps a Will-maker can take to reduce the likelihood of estate disputes. These steps include the Will-maker:

• Having a clear estate plan and seeking legal advice when creating the Will.
• Being as transparent and as straightforward as possible with the beneficiaries of the estate (usually family members) when discussing how the estate will be distributed. This will help to reduce the risk of misinterpretation and confusion.
• telling family members the reasons behind how the estate is divided.

Encouraging mediation or settlement negotiations early on in an estate dispute can also save the parties many months of time and many thousands of dollars.  Early settlement can also prevent the irreparable damage to family relationships that are often a by-product of prolonged and contentious estate disputes.

An executor only has the authority granted to them by the wording in the Will.  The executor does not have the authority to change the terms of the Will. The role of an executor is to carry out the instructions outlined in the Will and to distribute the assets of the deceased person’s estate according to the terms of the Will. An executor has a legal obligation to follow the instructions of the Will and must act in accordance with the best interests of the beneficiaries. If the Will is unclear or if there is a dispute about the distribution of the assets, the executor may have to seek court direction. They cannot make a unilateral decision regarding certain assets on their own.

The chance of successfully challenging a Will in court turns on the specific facts in each case.  Some cases have a very good chance of success.  Others cases are weak and likely to fail if brought to court.

If, for example, a Will-marker disinherits a child because she is a daughter, the daughter has a very good chance of convincing the court to change the Will in her favour.

However, if the Will-maker disinherits because the Will-maker has already given assets to the disinherited daughter and the Will equalises the Will-maker’s giving to other children, then there is a strong chance that daughter’s case would fail.

When faced with an estate dispute, B.C. as courts must balance the intentions of the Will-maker against a fairness standard.  A B.C. court will only interfere with a Will if the Will’s provisions fall outside of the range of what society would consider is fair in the circumstances of the specific case as determined by the judge.  The court will also rule accordingly if there is clear and convincing evidence of fraud, undue influence, or a lack of testamentary capacity.  Proving these points can be difficult, especially if there is a lack of evidence. That is why it is strongly recommended you contact an estate lawyer to discuss the details of your situation and to determine if you should proceed with filing a notice of dispute.