Challenging a Will

What can you do if you’re disappointed as a beneficiary? A beneficiary (someone who gets a share of your estate) is sometimes unhappy with their share of what they receive under a will. A spouse or child may feel that what they’ve received is less than fair, or they may not receive anything at all.

This script explains your rights and remedies in the following circumstances:

• A will appears to be unfair toward a spouse or child. • The person making the will may not have had the necessary mental capacity to do so. • There may have been undue influence or coercion on the person making the will. • The person died without making a will.

Occasionally someone else, perhaps a friend or other relative (who isn’t a spouse or child), may be disappointed with what they have or haven’t received under a will. They may have a claim in “unjust enrichment” against the estate. A lawyer will need to be consulted. For example, if you agreed to provide personal services to an older person in exchange for money when the person dies, or share of the estate, you may be able to make a claim against the estate. This script deals only with a disappointed spouse or child.

First, is the will unfair? If the “testator” (the person who died) has been unfair or unreasonable toward a spouse or child, the court may change the will, even if the will is technically valid. For example, the new Wills, Estates and Succession Act (WESA) gives the court the power to change a will that doesn’t adequately provide for the maintenance and support of the deceased person's spouse or children.

Does “spouse” include a common-law spouse? Yes, “spouse" includes a common-law spouse. But to be considered as a spouse, you must have lived with the testator in a marriage-like relationship for at least two years immediately before the testator’s death. Marriage-like relationships between people of the same sex are included, so a gay or lesbian partner can make a claim as a spouse of the deceased if they lived together in a marriage-like relationship for at least two years before the testator died.

What does the definition of “children” include? "Children" entitled to inherit from their parent’s estate includes biological children of any age, born either within or outside of a marriage, and legally adopted children. Stepchildren, however, or biological children who have been adopted by someone else, aren’t entitled to inherit from their parent’s estate.

What does the court consider? The court considers many things to see if the will adequately provides for the spouse or children, including:

• the value and nature of the assets of the estate (for example, the money and property owned by the testator) • the financial circumstances of the applicant (for example, the spouse or child asking the court to change the will) • the financial circumstance of the other beneficiaries • the character and conduct of the applicant towards the deceased person

The court’s main consideration will be whether the applicant spouse or child was financially dependent on the deceased, and if so, to what extent. For example, if a disabled adult child is left out of the will, the Court may determine that there was a moral and/or legal obligation to provide for this child. Many people are concerned that if they leave their disabled adult child a share of their estate, that child will lose social assistance benefits. This is not necessarily true. You must consult a lawyer to ensure that you are protecting your assets for the benefit of your disabled child so that he or she gets the maximum benefit.

How does the court decide to change the will? After considering the circumstances, the court may decide to change the will. The court will consider what a reasonable testator would have done. If the will reflects irrational anger or favouritism or without good reason ignores the genuine needs of the testator’s spouse or children, the court may change the will to make its provisions fairer. The court therefore has the power to order that the estate provide for the spouse or children in a way that is “adequate, just and equitable” in the circumstances.

Next, consider a testator’s lack of mental capacity Even where a will appears to meet the technical requirements of the law, a court may change the will if the court finds that the testator lacked the necessary mental capacity to make a will. A person can be eccentric or suffer from a mental disorder and still be able to make a will. However, they must have the capacity to:

• understand that they’re making a will • understand the effect of the will • appreciate the amount of the property they’re distributing with the will • understand and appreciate that their will should, if possible, make provisions for their spouse and children and not unfairly disentitle them

It often happens that an older person who has been befriended by another person will leave their entire estate to that person. The Court will make sure that the older person was not “unduly influenced” and had the appropriate mental capacity to make the will.

What happens to the estate if the testator lacked mental capacity? If a court finds that the testator lacked capacity with respect to any of these elements when they made their will, then the court may decide the will isn’t valid. If the deceased doesn’t have a previous will, this will mean that the deceased person has no will at all, and their estate will instead be divided according to WESA. If the testator has another will, made at an earlier time when they had testamentary capacity, then this earlier will will be valid and in force.

Note, however, that WESA allows the court to consider any record, document, email or text message to help determine the deceased’s testamentary intentions. The court can then order that the administrator of the estate act according to how the court believes the deceased wanted their estate to be distributed. This can effectively give documents such as emails, letters, and text messages the same authority as a properly-executed will. However, this provision is new to BC’s wills and estates legislation and it is unclear how the courts will interpret it. Still, if the deceased made a written record of how they wanted their estate to be handled —at a time when they had testamentary capacity—the court can consider at this as well.

What about undue influence or coercion? Sometimes unreasonable terms in a will will raise the suspicion that the testator was coerced into making the document. While there’s nothing illegal in suggesting to someone that they remember you in their will, the court can strike down any gift or inheritance in a will that can be proven to have been made through undue influence or pressure applied to the testator.

What will the court do if there has been undue influence or coercion? The court will cancel any will if it believes was made under the pressure of undue influence. If it’s established that a person was in a position where they potentially could have dominated the testator or made the testator dependent upon them, then that person will have the burden of proving that they didn’t unduly influence the testator.

What happens if the person dies without a will? Where a person dies without a will, WESA applies automatically, containing provisions for this occurrence. Refer to script 177 on “What Happens When You Die without a Will?”.

You should contact a lawyer If you have a problem like the ones described in this script, you should see a lawyer. There are deadlines known as “limitation periods” that must be met if you are a disappointed beneficiary and desire to have a will changed, and missing these deadlines can prevent you from enforcing your right if you delay in acting. For example, if a spouse or child feels that the will doesn’t adequately provide for their maintenance and support, they must start their court action within 180 days from the date of the grant of probate (for example, when the will is accepted by the court).

[updated March 2015]

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