Difference between revisions of "Challenging a Will"

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{{Dial-A-Law TOC|expanded = wills}}
{{Dial-A-Law TOC|expanded = wills}}
==What can you do if you’re disappointed as a beneficiary?==
==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.  
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 your rights and remedies in the following circumstances:


This script explains what a spouse or child can do if:
*A will appears to be unfair toward a spouse or child.
*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.
*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 person making the will.
*There may have been undue influence or coercion on the will-maker.
*The person died without making a 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.
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.  


==First, is the will unfair?==
This script deals only with a disappointed spouse or child.
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?==
==Is the will unfair?==
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.
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 ''[http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01 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.


==What does the definition of “children” include?==
==Spouse includes common-law spouse==
"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.
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.


==What does the court consider?==
==Who are included as children?==
The court considers many things to see if the will adequately provides for the spouse or children, including:
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.


*the value and nature of the assets of the estate (for example, the money and property owned by the testator)
==What does the court consider if a beneficiary challenges a will?==
*the financial circumstances of the applicant (for example, the spouse or child asking the court to change the 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 financial circumstance of the other beneficiaries
*the character and conduct of the applicant towards the deceased person
*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 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.  
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 to change the will?==
==How does the court decide whether to change a 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.
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.
 
==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:


==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 that they’re making a will
*understand the effect of the will
*understand the effect of the will
*appreciate the amount of the property they’re distributing with 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
*understand and appreciate that their will should, if possible, provide for their spouse and children and not unfairly disentitle or exclude 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.  
It often happens that an older person who has been befriended by another person will leave his or her 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?==
==What happens to the estate if the will-maker was not mentally capable?==
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.
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.


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.
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?==
==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.  
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.  


==What will the court do if there has been undue influence or coercion?==
==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.
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 happens if the person dies without a will?==
==What 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 [[What Happens When You Die Without a Will? (Script 177)|177]] on “What Happens When You Die without a Will?”.
WESA applies automatically. Script [[What Happens When You Die Without a Will? (Script 177)|177]] “What Happens When You Die without a Will?” has more on this.  


==You should contact a lawyer==
==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).
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 [[Making a Will and Estate Planning (Script 176)|176]] on “Making a Will and Estate Planning”
*Script [[What Happens When You Die Without a Will? (Script 177)|177]] on “What Happens When You Die without a Will”




[updated March 2015]
[updated April 2017]


'''The above was last reviewed for accuracy by Susan Hart, Jack Montpellier and Anna Kurt.'''
'''The above was last reviewed for accuracy by Hugh McLellan and edited by John Blois.'''
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