- A wills variation claim under section 60 of the Wills, Estates and Succession Act is open only to the will-maker's spouse or children, so other people need a different ground.
- Lack of mental capacity, improper signing and undue influence are each addressed in the Act as grounds for questioning a will, and other allegations such as fraud depend heavily on the facts.
- A will that was signed improperly can still be upheld by the court, so a formal defect does not always end the matter.
If you are not the will-maker's spouse or child, you cannot bring a wills variation claim, which is the claim that a will does not make adequate provision for support. That does not always leave you without options. A will can also be challenged on the basis that it is not valid at all.
This article gives an overview of the grounds people most often raise: capacity, undue influence, fraud and improper signing. It explains how they generally work in British Columbia. Every case turns on its own facts and evidence, so treat this as a map and not a verdict.
This article covers the law of British Columbia.
Validity challenges and variation claims are different
A variation claim accepts that the will is valid but asks the court to change what it provides. Only a spouse or child can bring it. A validity challenge says the document should not be treated as the will-maker's will in the first place.
The rules on who counts as a spouse have exceptions. Married spouses stop being spouses under the Act when an event such as separation gives rise to an interest in family property, and an unmarried partner stops being a spouse once one or both end the relationship. Spouses are not treated as separated if, within one year, they resume living together mainly to reconcile and do so for periods totalling at least 90 days.
Whether you can bring a validity challenge depends on your interest in the estate, for example as a beneficiary under this will or under an earlier or later one. A lawyer can confirm where you stand.
Lack of mental capacity
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. How this applies depends on your situation, so it is worth confirming with a lawyer.
Evidence usually matters a great deal here. People often look to medical records, notes from the lawyer or notary who took instructions, and accounts from those who saw the will-maker around that time.
Improper signing and formalities
A will must be in writing and signed at its end by the will-maker, or the signature acknowledged, in front of two or more witnesses present at the same time. Two or more of those witnesses must then sign in the will-maker's presence.
There is an important exception. The court may order that a record or document is fully effective as a will, or as a change to one, even though it does not follow the Act, and a record includes electronic data. A missing witness signature may therefore not defeat a will.
Undue influence and fraud
Undue influence means someone pressured the will-maker so the will reflects that person's wishes and not the will-maker's own. If you claim undue influence and show 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.
Allegations of fraud or other deception are serious, and how they apply depends on the facts and the evidence available. They are worth discussing with a lawyer before they are made.
- Who was close to the will-maker and who helped with their affairs
- Whether the will-maker was dependent on that person for care or money
- Who arranged the appointment and attended the meeting where the will was prepared
- Whether the will sharply changed an earlier plan, and any explanation for the change
What to do next
Time matters, because probate may be sought before you act. A person who has a right to notice, or who claims under an earlier or later will, may be able to file a notice of dispute before a grant is issued, which pauses the grant. The related article on stopping probate explains this.
- Find out whether the will has been submitted for probate and when
- Gather copies of any earlier wills, medical records and relevant messages
- Write down names of people who saw the will-maker around the time of signing
- Speak with a lawyer about your standing and the limits that apply to your ground
Frequently asked questions
Can a stepchild or grandchild challenge a will?
Section 60 names only a spouse or children. Whether other relatives can bring a validity challenge depends on whether they have an interest in the estate, for example under an earlier will, so a lawyer can confirm your position.
Is a will invalid if it was not witnessed properly?
Not necessarily. A will must be signed in front of two or more witnesses, but the court may order that a document is effective as a will even though it does not comply with the Act.
Who has to prove undue influence?
You start by showing that the other person was in a position where the potential for dependence or domination was present. The party defending the will or gift then has the onus of proving that no undue influence was exercised.
Does the 180-day limit apply to every challenge?
The 180-day period runs from the issue of the grant and applies to wills variation claims. Limits for other grounds depend on the circumstances, so get advice early rather than assuming you have time.
Sources
- Wills, Estates and Succession Act, SBC 2009, c 13, s 60 (BC Laws) — bclaws.gov.bc.ca
- Supreme Court Civil Rules, BC Reg 168/2009, Rule 25-10(1) (BC Laws) — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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