Frequently Asked Questions about Will Challenges

When a deceased passes, he or she may leave behind a will with which not all family members agree. If disagreements cannot be privately resolved, these individuals may take legal action by going to court to contest the will. This is known as a will challenge. To bring such a challenge, claimants must make an application to the Supreme Court of Canada within 180 days of the date the will was probated.

On What Grounds Can I Contest a Will?

Disgruntled individuals can challenge a will for several reasons. These include:

  • Undue influence
  • Lack of capacity
  • Improper execution
  • Will interpretation

What is Undue Influence?

Undue influence can occur when a testator is wrongly pressured or persuaded by another individual to change or write a will. Oftentimes, the individual who influenced the testator used some form of power over the testator to have the will changed in his or her favour.

A court may find that a testator was unduly influenced in the presence of such factors as:

  • Isolation from others
  • Threats or intimidation
  • A will that varies significantly from a previous will

If a court finds that the testator was coerced into making or changing a will, the court may declare the will invalid.

What is Lack of Capacity?

If the deceased made a will while not mentally capable, he or she may have lacked testamentary capacity. To determine such, a court examines such factors as whether the testator:

  • Failed to understand the nature and effect of the last will
  • Failed to understand the nature of property
  • Failed to understand the nature of the relationship to the beneficiaries

If a court decides that the deceased lacked mental capacity based on those factors, the will may be declared invalid.

What is Improper Execution of a Will?

In order for a will to be legally valid, formal requirements must be met. These include:

  • The will must be in writing
  • The will must be witnessed by two individuals
  • The will must be signed by the will-maker in the presence of the witnesses

How Are Wills Interpreted?

If the will is not clear about beneficiaries or assets, the executor can ask the court to interpret the will. Uncertainty can arise where a beneficiary has passed away or a testator's property was co-owned. Executors may also need clarification about certain clauses in the will pertaining to their duties.

Can a Will Be Changed?

In British Columbia, a surviving spouse or a testator's child may bring a wills variation claim. Such claims may be brought to court by a surviving spouse or a deceased's child who believes that he or she was not adequately provided for under the terms of the will. The court has the authority to change the will and provide the claimant with a proper entitlement for their needs.

Find out More about Will Challenges

If you are considering a will challenge or making a wills variation claim, call the lawyers at Peterson Stark Scott for estate litigation advice. Contact our office in Surrey at 604-634-2308 or toll-free at 800-675-2419. You can also reach us online.