Contesting a will in BC is often a complex, emotional process. With both emotions and stakes high, disagreements can arise over inheritance, placing additional strain on families already coping with loss. BC law establishes strict rules for when and how a will can be challenged. Many people have questions about who can contest a will, how long they have to act, and what circumstances give them the right to bring a claim. That’s why it’s essential to separate emotion from the legal realities of challenging a will.
Who is Entitled to See a Copy of a Will?
Once a will enters probate, it becomes a public record. Technically, anyone can request a copy of a will from the court registry. Before probate, the executor has a duty to provide a copy of the will to relevant individuals who have a legal interest in the deceased’s estate. This includes:
- The deceased’s surviving spouse.
- The deceased’s biological and legally adopted children.
- Any beneficiaries named in the current or previous version(s) of the will.
- Creditors who may have claims against the estate.
Can a Will Be Contested?
Under the Wills, Estates and Succession Act (WESA), certain people have the legal right to challenge a will. A will may be contested if there are concerns about its validity, fairness, or the way it was created. These disputes are handled through the probate court system, which is responsible for confirming that wills are properly executed and distributing estates according to the law.
When deciding whether a will can be challenged, the court may consider factors such as:
- The claimant’s relationship to the deceased (spouses and children generally have the strongest rights).
- The claimant’s financial interest in the estate and whether they were adequately provided for.
- The overall size and nature of the estate.
- Other benefits received outside the will, like joint property or life insurance policies, which may affect fairness.
What Are Grounds for Contesting a Will?
As mentioned, a will is not beyond question. Even if the document appears valid at face value, the law recognizes that mistakes, outside influences, or unfair provisions can undermine its legitimacy and prove the will void. Eligible parties may challenge a will if they believe it does not reflect the true intentions of the deceased or fails to provide adequate support required by law.
Common grounds for contesting a will in BC include:
- Validity concerns: For example, a will may not have been correctly signed or witnessed.
- Testamentary capacity: The will-maker, called the testator, may have lacked the mental capacity to understand what they were signing.
- Undue influence: Someone else pressured or coerced the will-maker into altering their will.
- Fraud or forgery: A will is suspected of being falsified.
- Ambiguity or unfairness: The will has unclear instructions or fails to provide adequate, just, and equitable support to spouses or children.
Who Can Contest a Will?
Not everyone has the legal right to challenge a will. The ability to contest a will is generally reserved for those who were financially dependent on the deceased or who have a direct legal interest in the estate.
Some commonly eligible parties include:
- Spouses: Including legally married spouses and common-law partners who lived in a marriage-like relationship with the deceased for at least two years
- Children: Both biological and adopted children; unless stepchildren were legally adopted, they do not have a valid stake to contest a will in BC.
- Creditors or individuals with a financial interest: Those owed money by the deceased or whose claims are directly affected by the estate
Can a Sibling Contest a Will?
No, siblings do not have an automatic right to contest a will in BC unless they were specifically named as beneficiaries and have a direct financial interest in how the estate is distributed.
How Long Do You Have to Contest a Will?
Strict timelines apply to estate disputes, but the deadlines depend on the type of claim being made.
Variation Claims
Under section 61 of WESA, a spouse or child who wishes to vary a will because they were not adequately provided for must file their claim within 180 days of the will being admitted to probate. Missing this six-month deadline usually means losing the right to bring a variation claim.
Validity Challenges
Creditors, beneficiaries, or other individuals with a financial interest can also contest a will, but their claims usually fall under the general two-year limitation period in BC’s Limitation Act. These challenges may involve allegations such as fraud, undue influence, or improper execution of the will. In some cases, if evidence of wrongdoing is only discovered later, courts may allow the matter to proceed even after the typical limitation period.
Can a Will Be Contested After Probate?
Yes, but the process is more limited once probate has been granted. After probate, most challenges involve a variance claim, which is a request for the court to adjust or interpret certain provisions of the will rather than overturn it entirely. Courts handle these claims carefully, since the estate may already be partially distributed and beneficiaries may have relied on the will’s instructions.
It’s important to note that timing still matters. The earlier a challenge is brought, the stronger the claimant’s position tends to be, and the court has more flexibility to resolve disputes before assets are fully distributed. Post-probate claims can be complex and may require detailed evidence, such as medical records, witness testimony, or prior versions of the will, to demonstrate why the court should intervene.
How to Contest a Will?
Contesting a will requires careful planning and adherence to strict legal rules. Whether or not probate has already been granted, the process involves several key steps to ensure your challenge is recognized by the court.
The process generally includes:
- Confirming eligibility: Making sure you are a spouse, child, creditor, or other individual with standing to make a claim.
- Establishing grounds: Identifying valid legal reasons to challenge the will, such as lack of testamentary capacity, undue influence, or improper execution.
- Gathering evidence: Collecting medical records, witness statements, prior versions of the will, or financial documents that support your claim.
- Filing a Notice of Dispute: If probate has not yet been granted, this notice prevents the court from proceeding with probate until the dispute is resolved.
- Filing a variance claim: If probate is already complete, the challenge is brought through a variance application to adjust or interpret specific provisions.
Because contesting a will can be legally complex and highly technical, consulting an experienced estate litigation lawyer early in the process is critical.
What Evidence Is Needed to Contest a Will?
The success of a will challenge depends heavily on the strength and clarity of evidence presented to the court.
Strong support evidence includes:
- Medical records that show the deceased lacked mental capacity when signing the will.
- Witness testimony about undue influence, coercion, or suspicious circumstances.
- Earlier versions of the will that conflict with the most recent version.
- Financial records indicating fraud, irregular asset transfers, or hidden transactions.
- Proof of dependency, if a spouse or child was unfairly excluded or inadequately provided for.
Can an Executor Contest a Will?
No. An executor’s role is to administer the estate according to the terms of the will and act in the best interests of all beneficiaries. If an executor believes there are valid grounds to challenge the will, even if they are also a beneficiary, they must resign from their role before pursuing any claim. Acting as both executor and claimant would create a conflict of interest, and the court will carefully review any challenge brought after resignation to ensure fairness in the estate’s administration.
Can an Executor Be Removed from a Will?
Yes. Courts may remove an executor if their actions compromise the administration of the estate. Some examples of misconduct include:
- Negligence or misconduct in managing the estate.
- Conflict of interest that threatens estate property or beneficiary rights.
- Inability to carry out duties.
- Unreasonable delays in probate or estate administration.
In some cases, courts may choose alternatives to removal to maintain continuity, such as court supervision, reversing improper transactions, or requiring the executor to repay losses. However, removal may be necessary in serious cases to protect the estate and beneficiaries.
Work With a Trusted Lawyer
The experienced estate litigation lawyers at Stephens & Holman specialize in estate settlement, litigation, and will disputes. Our focus is on ensuring beneficiaries are treated fairly and family members are properly cared for in accordance with established estate law. We can assist with the contest of a will or defend a loved one’s will from outside challenges, including contests made by third parties. Reach out today to learn more and to schedule your consultation.