Greife Law

Law Firms

How To Contest A Will In Kelowna BC

Title: How To Contest A Will In British Columbia

You may have been denied your inheritance, due to an unfair will, and it is actually a shock to be left out of a family member’s will and this feeling of exclusion will stay with you for years unless you do something about it. So if this has happened to you, you are entitled to make a family provision claim against the deceased person’s estate. The law requires the executor of the deceased’s estate to act fairly and justly by making provision from the estate for the claimant.

Can I Contest a Will in Kelowna BC?

Eligibility criteria vary in different places and you can make a claim if:

      • You are the spouse of the deceased when they died.
      • If you are living in a de facto relationship with the deceased when they died.
      • If you are a child of the deceased, you are entitled to make a will variation claim.
      • If you were once married to the deceased.

Only the spouse or child of the person making the will can challenge the will or make a variation claim if they are unhappy with their share or feel that appropriate provision for proper maintenance was not made for them in the will.

If you are a friend or relative of the deceased, other than the spouse or child, and you don’t feel that the will was fair to you, there are other ways that you can challenge it.

If you have grounds for believing that the will is invalid the decision must be based on one of the following reasons.

      • The will was not signed and dated by the deceased.
      • The will was not witnessed.
      • The situation changed since the will was made, ( if the deceased married again after the will was made the will is voided).
      • Undue influence was brought to bear on the testator, as in the case of a will changing in favor of a caregiver when the testator is in a terminally fragile state.
      • The will-maker revoked the will.
      • You are the spouse of the deceased when they died.
      • If you are living in a de facto relationship with the deceased when they died.
      • If you are a child of the deceased, you are entitled to make a will variation claim.
      • If you were once married to the deceased.

Only the spouse or child of the person making the will can challenge the will or make a variation claim if they are unhappy with their share or feel that appropriate provision for proper maintenance was not made for them in the will.

If you are a friend or relative of the deceased, other than the spouse or child, and you don’t feel that the will was fair to you, there are other ways that you can challenge it.

If you have grounds for believing that the will is invalid the decision must be based on one of the following reasons.

      • The will was not signed and dated by the deceased.
      • The will was not witnessed.
      • The situation changed since the will was made, ( if the deceased married again after the will was made the will is voided).
      • Undue influence was brought to bear on the testator, as in the case of a will changing in favor of a caregiver when the testator is in a terminally fragile state.
      • The will-maker revoked the will.
      • You feel that the will-maker was not capable of making a will.

When you are considered a Spouse?

      • If you are married to them when they died.
      • If you lived with them in a marriage-like relationship for two years until the time of death,

Criteria for making a Legal Will in Canada

      • It must be in writing ( a physical copy).
      • You must be over the age of majority in BC province at least 16 years.
      • You must be of sound mind.

It is important to have a legal will because if you don’t the law will determine how your estate is divided.

A legally valid Will

If the will is valid, only the spouse or the child can challenge it. There can be other reasons for wanting to challenge how an estate is distributed.

The challenge could arise if:

      • The person making the will wasn’t of sound mind when they made the will.
      • Pressure was brought to bear on the testator by another party.
      • The lawyer made a mistake in drafting the document.
      • The executor is unable to satisfactorily interpret the document.
      • If proven, the will-maker failed to provide for an individual in their will.
      • It was thought that the will-maker did not have the understanding or capability to make a will.
      • The will was made while the testator was being threatened by violence, and being isolated from others.

When can a Person make a Will

If they suffer from a Psychiatric Disorder that is controlled by medication they are still able to make a valid will, providing that they have testamentary capacity meaning that they can understand what it means to make a will. That they have an understanding of the value of their property that they own and who they will pass it to. Have an understanding that their will should pass to their spouse and children without unfairly excluding anyone.

Undue influence on a person making a will is considered fraudulent. It deals with a situation where a testator may have been pressured into changing their will. The coercion pressures the testator’s wishes and leads them to change their mind, maybe due to their current mental state.

This can happen when an elderly parent is unduly influenced by an adult child, who may tell lies about his siblings influencing the parent to think badly of the other party. Undue influence can be very hard to prove and often the person bringing the claims against his sibling gets away with the behavior.

Contesting a Will Due to Coercion

Often older people find it hard to make decisions and are easily influenced by those around them. The current law states that the will-maker must not be overborne to the extent where they are forced to make a will. Coercion is a form of pressure that continues and gradually wears the person down until they bowed to the pressure and change the will. It is easy to see that undue influence is not proven easily because the coercion could be continuing for a long time and psychologically the testator would gradually be worn down. Not many wills are overturned for undue influence and coercion, as it is usually impossible to prove. In these cases, there is often a vast amount of wealth at stake, and the person is often frail and easily influenced. So it is much better to make a will while you are strong and independent and if nothing changes, stick by your original decision. Leave it with your solicitor where no one can touch it.

Conclusion

Wills and estates can be a minefield when the whole family becomes involved, and this is where highly specialized legal advice should be sought.

In order to make a proper will you need to be well informed and open to professional advice, just asking friends and family what they would do is not a good move, as self-interest will always prevail. Once you have made the will and an executor has been appointed you can relax knowing that your will is finalized.

Have any Question or Comment?

Leave a Reply

Your email address will not be published. Required fields are marked *