Difference between revisions of "Challenging a Will"

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert|date= October 2018}} {{Dial-A-Law TOC|expanded = wills}}
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.


{{Dial-A-Law TOC|expanded = wills}}
==Understand your legal rights==
==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:
===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 appears to be unfair toward a spouse or child.
A will-maker is generally allowed to divide their property however they want. However, under the [https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec60_smooth 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'''.
*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.
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.


==First, is the will unfair?==
===You don’t have to be married to be considered a spouse===
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.
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.  


==Does “spouse” include a common-law spouse?==
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.
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 can be biological or adopted===
"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.
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.


==What does the court consider?==
===You can challenge a will if you think the will-maker wasn’t capable when they made the will===
The court considers many things to see if the will adequately provides for the spouse or children, including:
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


*the value and nature of the assets of the estate (for example, the money and property owned by the testator)
===You can challenge a will if you suspect there was undue influence or coercion===
*the financial circumstances of the applicant (for example, the spouse or child asking the court to change the will)
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.
*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.  
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.


==How does the court decide to change the will?==
==Understand the legal process==
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==
===There’s a time limit to making a wills variation claim===  
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:
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.


*understand that they’re making a will
===The court considers several factors when deciding whether to change a will===
*understand the effect of the 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:
*appreciate the amount of the property they’re distributing with the will
*the value and nature of the estate’s assets (for example, money and property the will-maker owned)
*understand and appreciate that their will should, if possible, make provisions for their spouse and children and not unfairly disentitle them
*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


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.  
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.  


==What happens to the estate if the testator lacked mental capacity?==
===The court considers what a reasonable will-maker would have done===
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.
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.


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.
===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 [http://canlii.ca/t/52x69#sec20 BC law], or
*had another will, then their most recent will — made when they were mentally capable — is valid.


==What about undue influence or coercion?==
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.
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 a will if there was 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.
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 happens if the person dies without a will?==
==Common questions==
Where a person dies without a will, WESA applies automatically, containing provisions for this occurrence. Refer to script [[What Happens When You Die Without a Will? (Script 177)|177]] on “What Happens When You Die without a Will?”.


==You should contact a lawyer==
===What if the person dies without a will?===
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).
If someone dies without a will, their estate is distributed according to [http://canlii.ca/t/52x69#sec20 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 [[When Someone Dies Without a Will (No. 177)|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.


[updated March 2015]
===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)|preparing a will and estate planning (no. 176)]] explains this in more detail.
'''The above was last reviewed for accuracy by Susan Hart, Jack Montpellier and Anna Kurt.'''
----
 


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Revision as of 17:32, 31 March 2019

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.

Common questions

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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