Legal Process to Challenge a Will in BC

You have to comply with the timelines to contest a BC will.

This time limit is also known as a limitation period within which you have to challenge the Will. If you fail to honor the deadlines, you should speak to your lawyer at the earliest because you may already be too late.

The limitation period is of 180 days, which starts with the granting of probate. You need to file a claim for change of Will within the specified time limit. The probate registry implies that the Will is valid, and the executor can legally proceed to execute the Will. If you take more than 180 days after the probate registry, you probably lose the chance to take any legal action to claim a will variation.

The limitation period is different if you want to challenge a BC will on the grounds of undue pressure or mental incapacity. You usually get a maximum time of two years starting from the date you know that you have a claim, or you should have known. It implies that you have to initiate legal action within two years.

To decide if a will is fair or not, the court may consider many factors.

Once you file a claim for changing a Will, the court may decide to change it, provided it believes that it is fair, keeping in mind the specific case circumstances. The court may consider several factors to make such a decision. They may include:

  • The reasons for the will-maker to distribute the estate in this manner
  • The worth and type of will-maker’s wealth and properties
  • The financial condition of the person challenging the Will
  • The financial condition of the other beneficiaries
  • Will-maker’s relationship with you and the nature of the relationship
  • Your dependence on will-maker and the extent of financial dependence
  • Whether anyone transferred any assets to you outside the estate
  • Whether the will-maker gifted any assets to you or other persons during his/her lifetime

The court examines what a person would have done reasonably.

The court may vary the Will to make it fair if it finds out that the will-maker had prepared the Will to favor or ignore, without any valid reasons. The will-maker may have acted with anger and did not provide for the beneficiary’s genuine needs, e.g., spouse and children. Therefore to make the Will fair, the court may order to provide for them sufficiently, justly, and equitably s per the case’s circumstances.

The court usually decides in favor of adult children on the grounds of moral obligation if the estate has sufficient funds. However, in some cases, the will-maker may have valid reasons to leave the adult children out of the Will. In such cases, the moral obligation clause is not applicable.

Similarly, the court may decide to favor a disabled child on the grounds of moral and legal obligations. In some other cases, the court may accept the reasons to leave such children out of the Will. E.g., the court may fear that it may affect the social assistance benefits received by the child. But that is not always the case. Check with your lawyer to ensure that your dependent adult child gets the maximum possible funds as a beneficiary of the estate.

The court can decide whether the will-maker was incapable of making the Will.

If the court finds out that the will-maker was mentally incapable of making a will, it may invalidate the Will. In that case, the following applies.

  • If there is no last will available, the court divides the estate as per BC law.
  • If the last Will is available, the most recent valid Will is applicable, provided the will-maker prepared the Will when he/she was mentally fit.

Besides, the court can also consider the deceased person’s written records to learn about his/her intentions to handle the estate when the will-maker was mentally fit. It includes any email, letter, or text message which the court may treat as a valid will. The court may accordingly distribute the assets. Till now, the courts were conservative in their approach. BC’s Wills and Estate Law have adopted these interpretations recently.

The court can cancel the Will if it finds evidence of coercion or undue pressure.

The court might cancel a will if someone applies undue pressure or coercion on the will-maker. If the court finds that the person could influence or dominate, the onus is on that person to prove that he did not coerce the will-maker.