Challenging a Will (No. 179)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Hugh McLellan, McLellan Herbert in October 2018.|
If you think your spouse or parent did not leave you enough in their will, you may be able to challenge it with a wills variation claim. Learn what’s involved.
Understand your legal rights
You can challenge a will if you are a spouse or child of the will-maker
If your spouse or parent passed away, and you are unhappy with what they left you in their will, you can challenge the will in court. You may feel you didn’t receive a fair share. Or maybe they didn’t leave you anything at all.
A will-maker is generally allowed to divide their property however they want. However, under the law in BC, a spouse or child of a will-maker who has passed away can challenge the will in court if they feel it doesn’t “make adequate provision for the proper maintenance and support” for them. This is called a wills variation claim.
A friend or relative (other than a spouse or child) may be disappointed with what they got or didn’t get under a will. They cannot make a wills variation claim. However, they may have a claim in “unjust enrichment” against the estate. For example, if they agreed to provide personal services to an older person in exchange for money when the person dies, or a share of the estate, they may be able to make a claim the estate was unjustly enriched at their expense. The law of unjust enrichment is complex, and it is best to seek legal advice if you think this might apply in your situation.
You don’t have to be married to be considered a spouse
In this context, you are a deceased person’s spouse if you:
- were married when they died, or
- lived with them in a marriage-like relationship for at least two years immediately before they died.
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 two-year test.
Children can be biological or adopted
Children entitled to inherit from their parent’s estate include biological children of any age, born either within or outside of marriage, and legally adopted children.
Stepchildren are not considered children under wills variation law. Biological children adopted by someone else (unless they were adopted by the parent’s spouse) are not entitled to inherit from their biological parent’s estate.
You can challenge a will if you think the will-maker wasn’t capable when they made the will
Even if a will appears to meet the technical requirements of the law, a court may change it if it finds 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 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 their will should, if possible, provide for their spouse and children and not unfairly exclude them
You can challenge a will if you suspect there was 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.
Understand the legal process
There’s a time limit to making a wills variation claim
A wills variation claim must be started within 180 days from the date the grant of probate or administration is issued by the probate registry. (The grant confirms the will is legally valid and can be acted on.) If a wills variation claim is brought more than 180 days after the grant is issued, the opportunity to bring a legal action to change the will is likely lost. If you want to make a claim, you should talk to a lawyer immediately.
The court considers several factors when deciding whether to change a will
The court can decide to vary a will if they think it is fair to do so in the particular circumstances of the case at hand. The court considers many things to decide whether the will adequately provided for the spouse or children of the deceased, 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 circumstances 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
- evidence of the will-maker’s reasons for not fairly providing for their spouse or child
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 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 should consult a lawyer to ensure you are protecting your assets for the benefit of your disabled child so they get the maximum benefit.
The court considers what a reasonable will-maker would have done
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.
The court may find that the will-maker wasn’t capable when they made the will
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. In these circumstances, if the will-maker:
- didn’t have a previous will, their estate will be divided according to BC law, or
- had another will, then their most recent will — made when they were mentally capable — is valid.
Under the law, the court can 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 relatively new to BC’s wills and estates law — 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.
The court will cancel a will if there was undue influence or coercion
The court will cancel any will 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 they didn’t unduly influence the will-maker.
What if the person dies without a will?
If someone dies without a will, their estate is distributed according to the law. Generally, the estate goes to the spouse, children, and descendants (for example, grandchildren) of the deceased. If there’s no spouse or descendants, the estate will go to other relatives. Our information on what happens when you die without a will (no. 177) explains in more detail how an estate is divided if there is no will.
Do I need to see a lawyer?
If you have a problem like the ones described, 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 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.
What if I want to leave my spouse or child out of my will?
If you’re thinking of leaving a spouse or child out of your will, or leaving them less than they might reasonably expect, see a lawyer. Our information on preparing a will and estate planning (no. 176) explains this in more detail.
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