Can I challenge a will because my parent lacked mental capacity in British Columbia?
This answer covers the law of British Columbia.
Yes, you can challenge a will on the ground that the will-maker lacked mental capacity, but success depends on the evidence about their state of mind when the will was made. Under the Wills, Estates and Succession Act (WESA), a person who is 16 or older and mentally capable of doing so may make a will, and a will made without mental capacity can be challenged as invalid.
Whether capacity was lacking depends on the facts, so it is worth confirming with a lawyer how medical and other records from the time the will was made apply to your situation. Other grounds may also matter. A will generally must be in writing and signed at its end in front of two or more witnesses present at the same time. Where a person shows potential for dependence or domination of the will-maker, the party defending the will must prove no undue influence was exercised.
If you are the will-maker's spouse or child, a wills variation claim is a separate route and must be started within 180 days from the date the grant is issued in British Columbia. Deadlines run quickly, so speak with a lawyer early.
Key takeaways
- A will-maker must be 16 or older and mentally capable of making a will, and a will made without capacity can be challenged as invalid.
- Whether a will-maker had capacity depends on the facts of the situation, so it is worth confirming with a lawyer.
- Signing formalities and undue influence are other grounds, though a court can still uphold a document that misses the formalities.
- A spouse or child can also consider a wills variation claim, which has a 180-day limit from the date the grant is issued.