Challenging a Will for Lack of Capacity in British Columbia

If a parent or relative had dementia or another serious illness around the time they signed a will, it is natural to wonder whether they understood what they were doing. The question can feel urgent, especially when the will changes what you expected.

This article explains in plain terms how British Columbia law treats capacity, what kinds of evidence tend to matter, and how you can slow down probate while a concern is looked into. It is general information, not advice on your situation.

This article covers the law of British Columbia.

What the law requires of a will-maker

Under section 36(1) of the Wills, Estates and Succession Act (WESA), a person who is 16 years of age or older and mentally capable of doing so may make a will. A will made without mental capacity can be challenged as invalid.

How a court applies the capacity requirement to a particular person, including where a diagnosis such as dementia is involved, depends on the facts, so it is worth confirming with a lawyer. Medical records and the accounts of people who were present can help show the person's condition, but how that evidence is weighed is something a lawyer can help you assess.

What evidence tends to matter

Evidence is central to any dispute about capacity, and what counts depends on the facts. If you are thinking about a challenge, start by working out what records and witnesses might exist.

• Medical and care-home records from the months before and after the date on the will.
• Notes or files from the lawyer or notary who prepared the will, if any.
• The names of the witnesses who signed, and what they saw.
• Earlier wills, so you can compare what changed and when.
• Accounts from family, friends, caregivers and neighbours about the person's day-to-day thinking and memory.
• Financial records showing whether the person was managing their own affairs.

Other grounds that often come up with capacity

Capacity is rarely the only issue. 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, and at least two of them must then sign in the will-maker's presence. A document that misses these steps can sometimes still be upheld, because the court may order that a record is fully effective as the will even though it does not comply with the Act.

Undue influence is another ground. If a person claiming undue influence shows that someone 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. This can matter where a vulnerable person relied on a caregiver or family member.

Pausing probate while you look into it

A person who must be given notice of the probate application, or who claims an interest under a prior or later will, may file a notice of dispute. It must be filed before the earlier of the issue of an authorization or of the estate grant. It uses Form P29 and must give an address for service, and you cannot file more than one for the same estate.

While a notice of dispute is in effect, the registrar must not issue an estate grant for that estate. It stops being in effect after one year, at the end of any renewal period, if you withdraw it, if the will is proved in solemn form, or if the court orders it removed. The court may renew it for a period it considers appropriate, but a late renewal application requires you to show good reasons it could not be brought earlier, substantial prejudice to you and no substantial prejudice to other interested persons.

Any person interested in the estate may apply to remove a notice of dispute, and the court may order removal if the filing is not in the best interests of the estate. Proof in solemn form means the court pronounces for the force and validity of the will after a trial or hearing.

What to do next

• Check whether a probate file already exists by searching 'probate and caveat/dispute cases' in Court Services Online using at least part of the deceased's last name.
• Gather medical records, earlier wills and names of witnesses before memories fade.
• Note the date any grant is issued. If you are a spouse or child, a wills variation claim has its own 180-day limit from the grant.
• Do not assume you have time. A notice of dispute must be filed before the earlier of the issue of an authorization or of the estate grant.
• Speak with a lawyer about whether the evidence supports a challenge and what it could cost in costs risk, since costs generally go to the successful party unless the court orders otherwise.

Frequently asked questions