Grounds for Challenging a Will in British Columbia Besides Variation

When people think a will is wrong, they often assume the only route is a wills variation claim. That claim accepts that the will is valid but asks the court to order better provision for a spouse or child.

There is a different kind of challenge: arguing the will itself is not valid. This article walks through the main grounds in British Columbia. Whether any of them fits your situation depends on evidence, so a lawyer should look at the documents.

This article covers the law of British Columbia.

Two different kinds of challenge

A wills variation claim under section 60 of the Wills, Estates and Succession Act (WESA) can be brought only by the will-maker's spouse or children. A validity challenge asks whether the will was properly made at all.

A wills variation claim asks the court to order that the provision it thinks adequate, just and equitable be made out of the estate. A validity challenge looks instead at grounds such as capacity, signing rules and undue influence. How the two fit together in a particular case depends on your situation, so it is worth confirming with a lawyer.

Lack of mental capacity

Under WESA s. 36(1), a person who is 16 or older and mentally capable of doing so may make a will. A will made without mental capacity can be challenged as invalid.

Medical records, notes from the lawyer or notary who prepared the will, and accounts from people who saw the will-maker around that time often matter. How capacity is tested in detail is a legal question worth putting to a lawyer.

Improper signing and witnessing

Under WESA s. 37(1), a will must be in writing and signed at its end by the will-maker, or the signature acknowledged, in the presence of 2 or more witnesses present at the same time. Two or more of those witnesses must then sign in the will-maker's presence.

A mistake here does not always end the matter. Under WESA s. 58, the court may order that a record or document is fully effective as the will-maker's will, or as a revocation, alteration or revival of a will, even though it does not comply with the Act. A record includes electronic data.

Undue influence

Undue influence is a legal concept, and how it applies to a particular will depends on your situation, so it is worth confirming with a lawyer. Under WESA s. 52, if the person claiming undue influence shows that another person was in a position where the potential for dependence or domination of the will-maker was present, the party defending the will or gift then has the onus of proving that no undue influence was exercised.

That shift of onus makes the relationship between the will-maker and the person who benefited an important part of the evidence.

Timing and who must be told

Timing matters in estate disputes. For a wills variation claim, the proceeding must be started within 180 days from the date the grant of probate or administration is issued in British Columbia. A copy of the initiating pleading must be served on the executor no later than 30 days after that 180-day period expires, unless the court extends the time for service.

A personal representative must not distribute the estate within 210 days after the grant is issued, unless the court orders otherwise. The exception is that the estate may be distributed within the 210 days if all beneficiaries with an interest, and all persons who may bring a wills variation proceeding, consent.

If the will-maker has minor children, or a spouse or child of the will-maker is mentally incapable, a wills variation pleading must also be served on the Public Guardian and Trustee, or the claim will not be heard. Time limits for a validity challenge depend on the facts, so it is worth confirming them with a lawyer.

Other grounds and what to do next

Grounds beyond capacity, signing rules and undue influence depend on the evidence in each case. A lawyer can confirm whether they apply to your facts.

• Gather the will, any earlier wills, and the names of the witnesses.
• Collect medical records or notes from the period when the will was signed, if you can lawfully obtain them.
• Check whether a probate file or dispute already exists by searching Court Services Online by the deceased's name.
• If you are entitled to notice of a probate application, know that a notice of dispute filed before the grant is issued stops the grant from being issued while it is in effect.
• Speak with a lawyer promptly, because deadlines can be short.

Frequently asked questions