Legal Grounds for Contesting a Will
On behalf of Linley Welwood LLP posted in Wills on Thursday March 26, 2020
There are a number of legal grounds for contesting a will or estate. If you have been disinherited from your parent or spouse’s will, or a will seems unfair or invalid, our professional team of wills, estates, and trusts lawyers at Linley Welwood, take the time to listen and understand your needs and concerns, so that we can best serve you.
1. Invalid Execution
In British Columbia, the Wills Estate & Succession Act (WESA) governs the execution of wills. A will-maker must comply with the formal requirements of WESA, in order to make a valid will. Some of the formal requirements include the following:
- the will must be in writing
- the will must be signed by the will-maker in the presence of at least two witnesses, who are both present at the same time
- the will must be signed by two or more of the witnesses in the presence of the will-maker
- the will-maker must be at least 16 years old.
If a will is not executed according to these requirements (subject to some exceptions) it may not be valid.
2. Testamentary Incapacity
In addition to complying with the formal requirements of WESA, the will-maker must have the requisite testamentary capacity to make a will. In other words, the will-maker must know generally the nature of their assets, who they owe a moral duty to, what they are giving away and to whom. The will-maker must also freely intend to make the will. In other words, the will-maker must not have made their will as a result of being subject to fraud, fear, or undue influence.
3. Wills Variation
In BC, if there is a valid will, a spouse or children of the deceased can apply to have the will varied, if he or she feels that the will does not adequately provide for his or her proper maintenance and support. In determining whether proper maintenance and support has been adequately provided for in the will, the court will consider the will-maker’s legal and moral obligations to his or her spouse and children. In addition, it is important to note that wills variation actions are time sensitive and must be commenced within 180 days from the date of probate.
If you would like to learn more about the legal grounds for contesting a will, or if you are interested in our legal services for wills, estates, and trusts, please contact Linley Welwood at 604-850-6640 or by filling out a contact form on our website.
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