WILL & ESTATE
LITIGATION

The majority of cases our estate litigation lawyers handle involve contesting or challenging a Will, usually initiated by a family member who does not agree with the contents of the deceased’s Will. Below are two common grounds on which a will may be challenged.

VALIDITY OF A WILL IN BC

If you are wondering if a specific Will is authentic or binding in British Columbia (BC), you can formally challenge the validity of the Will. In order for a will to be deemed valid it must meet five requirements, as outlined by the BC Wills Act:

  1. The Will must be in writing;
  2. The Will must be signed by the testator (the deceased person who has written the Will) or by another person in the testator’s name and in the testator’s presence by his or her direction;
  3. The testator’s signature must be made or acknowledged by him or her in the presence of two or more witnesses both present at the same time;
  4. The witnesses must sign the Will in the presence of the testator; and
  5. The testator must be at least 19 years of age unless he or she is married or is in the armed forces.

Upon meeting these requirements a court will deem the Will to be valid unless someone brings forth allegations of a lack of testamentary capacity (mental ability) or undue influence (i.e. somebody forcing the testator to write and/or sign a Will). If either of these things are alleged, then an executor must prove that the testator had the requisite capacity to make a will and was not subject to undue influence.

TESTAMENTARY CAPACITY

Testamentary capacity encompasses two components:

  • At the time of executing the Will, the testator understands the act of making a Will. Specifically, that he or she is intending to dispose of property effective on his or her death; and
  • At the time of executing, (creating and signing) the Will the testator was free of mental disorder.

The law requires strict compliance with these basic requirements. Failure to abide by them will result in an invalid Will and defeat the original intentions of the testator.

In order to challenge a Will on any of the components noted above, you must first commence a probate action. The process of proving before a competent judicial authority that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine.

TIME LIMITS ON ESTATE LITIGATION IN BC

Section 61 of Wills, Estate and Succession Act (WESA) provides a time limit for commencing a proceeding to vary a will and requires notice to be provided to the executor within 30 days of the expiry of this 180 day period.

This time limit begins after probate is issued in a British Columbia Estate. Although the time limit is slightly longer for a claim of unjust enrichment or constructive trust, time is of the essence in all contested estates. Our firm also offers mediation and arbitration services in an effort to resolve disputes at an early stage.

POWER OF ATTORNEY

If a deceased person has signed over power of attorney, that person can sometimes abuse that power and make financial decisions that are not in the best interest of the family. Anybody who has been granted power of attorney has special duties required by law. The Courts view them as a Trustee who must not use the Power of Attorney for his or her personal benefit. If a person who has granted Power of Attorney fails to fulfill their fiduciary duty, we can file a breach of trust claim with the Courts that may then be used to recover assets.

Resources
http://www.ag.gov.bc.ca/legislation/shareddocs/wesa/qa.pdf
http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01

NEXT STEPS

If you are concerned about the validity of a Will, or wish to challenge its provisions we strongly recommended that you consult a Wills and Estate Lawyer in one of our Vancouver, Surrey, Kelowna, or Fort St. John offices to better understand your legal rights and obligations. We are here to help. Please feel free to contact us now.