Legal information provided by Morgyn Chandler, Partner, Helpforme Personal Legal Services. The following is the third of a three-part series of articles on Wills & Estate Planning and Estate Litigation to provide you with an understanding of how inheritance is handled under the law in BC. We are proud to have served the Cowichan Valley community for 20 years.
In B.C., a will can be challenged on several grounds:
Challenge the will based on capacity: If it can be shown that the will-maker lacked testamentary capacity, the will may be found to be invalid. This illustrates why it is important to organize your estate while you are mentally and physically healthy and able to explain your wishes to a lawyer.
Challenge the will based on undue influence: If someone coerced the will-maker into making the will in a way that favours them or their wishes, the will may be found to be invalid. An example would be when a child convinces their parent to change their will on their death bed to provide them with a higher percentage of the assets.
Challenge the will based on unfair distribution of assets: According to the law, a will-maker has a moral obligation to provide for their spouse and children. A child who receives nothing in their parent’s will may apply to the court to have the assets redistributed so that they are provided for. Those legally eligible to apply for a wills variation include: the surviving spouse of the same or opposite sex; the common-law spouse (in a marriage like relationship for at least two years prior to the death, including same-sex); or the child of the will-maker, including adopted children, but not step-children.
Challenge the will based on improper execution: There are a number of technical requirements that must be met to make a will valid. If one of these conditions are not met, the will may be challenged on this ground.
Challenge the will based on a constructive trust: If a person provided unpaid work for the will-maker and was promised compensation, they may have a claim for the assets in the will, even if they have not been specifically provided for. This is called a constructive trust or unjust enrichment.
Challenges the validity of pre-death gifts: There are a number of ways that individuals may transfer items so that they do not form part of their estate on death, and thus are not subject to the terms of the will. If assets are transferred incorrectly, or it is your belief that they were meant to form part of the estate, the pre-death gifts can be challenged as being part of the estate. An adult child may need to defend a transfer made to them by a parent, pre-death, as a gift. This applies to transfers of property or to a joint bank account.
Given the number of possible estate litigation issues that could potentially arise from wills that do not meet specific legal guidelines, it is advisable to consult with an estate planning lawyer such as the Wills, Estates & Trusts lawyers at Hammerberg Lawyers LLP. Their expertise in defensive estate planning techniques can ensure that your final wishes and your estate are secured as much as possible.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or consult a lawyer.