Challenging a Will

What can you do if you’re disappointed as a beneficiary?

Beneficiaries (people who get a share of an estate when a person dies) are sometimes unhappy with their share. Spouses and children may feel that they did not receive a fair share. Or they may received nothing.

This script explains what a spouse or child can do if:

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

Occasionally someone else, a friend or relative but not a spouse or child, may be disappointed with what they got or didn’t get under a will. They may have a claim in “unjust enrichment” against the estate. In that case, they need to see a lawyer. For example, if you agreed to provide personal services to an older person in exchange for money when the person dies, or a 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.

Is the will unfair?

If the will-maker (also called the deceased) has been unfair or unreasonable to a spouse or child in their will, the court may change the will, even if the will is technically valid. For example, the 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 dead person's spouse or children.

Spouse includes common-law spouse

A common-law spouse is a spouse under WESA if they have lived with the will-maker in a marriage-like relationship for at least 2 years immediately before the will-maker’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 if they meet the same 2-year test.

Who are included as children?

Children entitled to inherit from their parent’s estate include biological children of any age, born either within or outside of a marriage, and legally adopted children. But stepchildren and biological children adopted by someone else are not entitled to inherit from their parent’s estate.

What does the court consider if a beneficiary challenges a will?

The court considers many things to see if the will adequately provide for the spouse or children, including:

• the value and nature of the estate’s assets (for example, money and property the will-maker owned)
• the financial circumstances of the spouse or child challenging the will
• the financial circumstance of the other beneficiaries
• the character and conduct of the spouse or child towards the deceased
• whether the spouse or child depended financially on the deceased and to what extent

The court’s main consideration will be whether the will-maker acted as a judicious spouse or parent. For example, if a disabled adult child is left out of the will, the court may find that there was a moral and 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 always true. You must consult a lawyer to ensure that you are protecting your assets for the benefit of your disabled child so that they get the maximum benefit.

How does the court decide whether to change a will?

The court will consider what a reasonable will-maker would have done. If the will reflects irrational anger or favouritism or ignores the genuine needs of the will-maker’s spouse or children, without good reason, the court may change the will to make it fairer. The court can order that the estate provide for the spouse or children in a way that is “adequate, just and equitable” in the circumstances.

What if a will-maker is not mentally capable?

Even if a will appears to meet the technical requirements of the law, a court may change if it finds that the will-maker lacked the 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 who their next of kin are and appreciate that their will should, if possible, provide for their spouse and children and not unfairly disentitle or exclude them

What happens to the estate if the will-maker was not mentally capable?

If a court finds that the will-maker was not mentally capable when they made their will, it may decide the will isn’t valid. If the will-maker doesn’t have a previous will, they will then have no will at all, and their estate will instead be divided according to WESA. If the will-maker has another will, made when they were mentally capable, then the earlier will is valid.

WESA lets the court consider any record, document, email or text message to help learn the deceased’s intentions for their estate. The court can then order the administrator of the estate to distribute the estate based on what the court believes the deceased wanted. This can give documents such as emails, letters, and text messages the same authority as a valid will. This part is new to BC’s wills and estates law and so far, courts have been conservative in interpreting it. Still, if the deceased made a written record of how they wanted their estate to be handled—when they were mentally capable—the court can consider it.

What about undue influence or coercion?

Sometimes unreasonable terms in a will raise the suspicion that the will-maker was coerced or forced into making the document. While there’s nothing illegal in suggesting to someone that they remember you in their will, the court can disallow any gift or inheritance in a will if it was given because of undue influence or pressure on the will-maker.

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 will the court do if there has been undue influence or coercion?

The court will cancel any will that it believes was made under undue influence or coercion. If it’s shown that a person was in a position where they could have dominated the will-maker or made the will-maker depend on them, then that person will have to prove that they didn’t unduly influence the will-maker.

What if the person dies without a will?

WESA applies automatically. Script 177 “What Happens When You Die without a Will?” has more on this.

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, called limitation periods, that must be met if you are a disappointed beneficiary and want to have a will changed. If you miss the deadlines, it may be too late. For example, if a spouse or child feels that the will doesn’t adequately provide for their maintenance and support, they must sue within 180 days from the grant of probate (when the will is accepted by the court) and must serve the claim on the executor within 210 days of the grant of probate.

More information

• Script 176 on “Making a Will and Estate Planning”
• Script 177 on “What Happens When You Die without a Will”

[updated October 2018]

The above was last reviewed for accuracy by Hugh McLellan and edited by John Blois.

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