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Estate Litigation

Contesting a Will in BC? Get Answers with this Will FAQ

Contesting a will in BC can occur before or after the probate process has begun. Most will contests are made after a will has entered probate. Heirs, family members, and eligible third-party challengers can contest a will after it has already entered or completed the probate process.

Can a will be contested?

The British Columbian legal system has defined procedures for contesting a will in court. These procedures are conducted by the probate court system, which is devoted to probating wills and estates. Probate court serves a number of formal functions to validate and execute a will. The execution of a will is a type of estate settlement process, which can also include estates without a will. When a valid will exists, probate proceeds only when the will’s designated executor initiates it. There are a number of factors probate courts will consider when determining whether a will can be contested:

  • The size of the estate.
  • The claimants’ financial stake in the will.
  • The claimants’ relationship to the deceased.
  • Any property or monetary benefits (such as a life insurance policy) received by the will’s beneficiaries separately from the will.

How to contest a will?

To contest a will in British Columbia, a dependent of the deceased must take several steps before filing a Notice of Dispute in BC’s Probate Court. A Notice of Dispute prevents a qualifying will from entering probate court. If a will has already been probated, the claimant would instead request for a will’s variance. When a will contains provisions regarding the substantial division of property to multiple beneficiaries or debts owed to third-party creditors (such as financial institutions) are not accounted for, the will is unlikely to be probated until these issues are resolved.

The steps to challenging a will include determining:

  • Your eligibility to contest a will.
  • Whether you have legitimate grounds for contesting a will.
  • If the will is valid.
  • Whether the will was properly executed.

Who can contest a will?

Family members such as children or spouses have the right to challenge or contest a will. If the deceased failed to adequately provide for the needs of these family members, the probate court may prevent the will from entering probate and require the establishment of a new estate settlement plan.

It is important to understand who BC recognizes as a spouse or child. The Wills, Estates and Succession Act extends the right of individuals whose partnership is not officially recognized as a marriage under the law to contest a will. This includes those who were confirmed companions of the deceased. Biological children as well as adopted children are considered eligible to contest a will, whereas stepchildren are not.

A child or a spouse can generally contest a will under the following conditions:

  • These beneficiaries are already named in the will.
  • Beneficiaries were named in a previous will but were written out of a more recent version or their inheritance was recently decreased.
  • Children or spouses were not included in the will but would otherwise have a claim to inheritance if the will didn’t exist.

In addition to family members, third parties with a stake in the estate settlement process, typically joint property holders or creditors, can also submit a Notice of Dispute to contest a will. Wills with an active Notice of Dispute against them can not be granted probate.

Can siblings contest a will?

No, siblings have no legal right to contest a will under BC’s Wills, Estates and Succession Act as they are not considered dependents of the deceased.

How long do you have to contest a will?

As outlined in section 61 in the Wills, Estates and Succession Act, the statute of limitations establishing the deadline for contesting a will states that a claim must be submitted within 180 days of the will’s admission to probate.

On what grounds can a will be contested?

There are a number of grounds on which eligible claimants may contest a will, either prior to entering the probate process or after probate has been granted.

Under the law, claimants have cause to challenge a will under a number of circumstances. Every will is different, so it should be noted that whether a will can be legally challenged is often questionable, requiring substantial effort to interpret. The experienced estate dispute lawyers at Stephens & Holman can provide a no fee, no obligation case evaluation to determine whether your claim is likely to meet the requirements necessary to contest a will. The probate court will determine if your claim satisfies the following conditions for contesting a will:

  • Concerns about the will’s validity
  • Questions regarding the executor or court’s interpretation or execution of the will
  • Concerns about the deceased’s “testamentary capacity” or their mental condition when authoring a will
  • You have legal grounds to remove the executor

Can a will be contested after probate?

A will can be contested even after the probate process has been completed and is deemed legally valid by the courts. To challenge all or part of a will’s provisions, beneficiaries can do so with aclaim of variance after probate is complete. Variances are likely to be granted when the intent of a will or any of its provisions are difficult to interpret, or when high value assets are distributed. Claims of variance can also be made when the deceased individual’s mental status is suspected to have been compromised during the will’s drafting.

Variance claims are more likely to be accepted by the courts if the executor has not already commenced the settlement process. Contests based on mental incapacity or undue influence are most likely to be accepted if assets were transferred to existing heirs prior to the deceased’s passing.

What invalidates a will?

There are several ways a will can be invalidated by the courts. Three primary reasons a will can be invalidated include:

  • Errors in the will’s execution according to the Wills, Estates and Succession Act, due to executor error or impropriety.
  • Undue influence, usually by a caretaker or someone close to the deceased who coerced this individual into altering their will.
  • Absence of testamentary capacity, meaning that the deceased was not of sound mind while authoring their will. They lacked the capacity to understand the importance of their will, the nature of their assets, or their moral duty to their dependents.

Can an executor be removed from a will?

An executor can be removed from their position if the courts find reasonable grounds for doing so. The interests of the estate and its beneficiaries are the court’s top concern when judging how fit an executor is to administer an estate. The court may consider alternatives to removing an executor in order to maintain continuity and abide by the deceased’s wishes. This includes court-mandated supervision, reversing transactions, or requiring an executor to personally pay for financial mistakes. The court may decide to remove an executor under the following circumstances:

  • Negligence or intentional misconduct has occurred.
  • There’s been a conflict of interest that endangers estate property.
  • The executor has been incapacitated
  • They delay the will from entering probate without reasonable grounds for doing so.

The experienced estate lawyers at Stephens & Holman specialize in estate settlement, litigation, and will disputes. Our focus is ensuring beneficiaries are treated fairly and family members are properly cared for in accordance with established estate law. We can assist with the successful contest of a will or defend a loved one’s will from outside challenges, including contests made by third parties.