Guest column: Inheritance under B.C. Law, Part III – Challenges to your will

Guest column: Inheritance under B.C. Law, Part III – Challenges to your will

In B.C., a will can be challenged on several grounds

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.

Just Posted

The MS Society flag flies at Duncan city hall to mark MS Awareness Month. (Kevin Rothbauer/Citizen)
Duncan and CVRD help mark MS Awareness Month

MS Walk scales back, but fundraisers are still vital for MS Society

“Keeping fit for Mother’s Day: Participants of Cowichan Lake Recreation’s Mother’s Day hiking event make their way down the Trans Canada Trail, Sunday, May 8. The morning event later wrapped up with snacks and prizes.” (Tyler Clarke/Lake Cowichan Gazette May 11, 2011)
Flashback: Bears, elk, salmon, candidates, and lumber graders

This week around Cowichan Lake in years gone by

Sign up to fundraise to help those affected by dementia. (Submitted)
Not too late for Cowichan residents to join Alzheimer’s Walk

Set a walking or fitness goal for May and raise funds for the Alzheimer Society of B.C.

Robert’s column
Robert Barron Column: Poachers in forest reserve should be treated harshly

‘Poachers need to be rounded up and prosecuted as soon as possible’

Daily confirmed COVID-19 cases reported to B.C. public health, seven-day rolling average in white, to May 12, 2021. (B.C. Centre for Disease Control)
B.C. preparing ‘Restart 2.0’ from COVID-19 as June approaches

Daily infections fall below 500 Friday, down to 387 in hospital

A vial of AstraZeneca vaccine is seen at a mass COVID-19 vaccination clinic in Calgary, Alta., Thursday, April 22, 2021. Dr. Ben Chan remembers hearing the preliminary reports back in March of blood clots appearing in a handful of European recipients of the Oxford-AstraZeneca COVID-19 vaccine. THE CANADIAN PRESS/Jeff McIntosh
Science on COVID, VITT constantly changing: A look at how doctors keep up

While VITT can represent challenges as a novel disorder, blood clots themselves are not new

Poached trees that were taken recently on Vancouver Island in the Mount Prevost area near Cowichan, B.C. are shown on Sunday, May 10, 2021. Big trees, small trees, dead trees, softwoods and hardwoods have all become valuable targets of tree poachers in British Columbia as timber prices hit record levels. THE CANADIAN PRESS/Jen Osborne.
Tree poaching from public forests increasing in B.C. as lumber hits record prices

Prices for B.C. softwood lumber reached $1,600 for 1,000 board feet compared with about $300 a year ago

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

The warm weather means time for a camping trip, or at least an excursion into nature. How much do you know about camps and camping-related facts? (John Arendt - Summerland Review)
QUIZ: Are you ready to go camping?

How many camp and camping-related questions can you answer?

On Friday, May 14 at Meadow Gardens Golf Club in Pitt Meadows, Michael Caan joined a very elite club of golfers who have shot under 60 (Instagram)
Crowds at English Bay were blasted with a large beam of light from an RCMP Air-1 helicopter on Friday, May 14. THE CANADIAN PRESS/Marc Grandmaison
Police enlist RCMP helicopter to disperse thousands crowded on Vancouver beach

On Friday night, police were witness to ‘several thousand people staying well into the evening’

Sinikka Gay Elliott was reported missing on Salt Spring Island on Wednesday, May 12. (Courtesty Salt Spring RCMP)
Body of UBC professor found on Salt Spring Island, no foul play suspected

Sinikka Elliott taught sociology at the university

The first Black judge named to the BC Supreme Court, Selwyn Romilly, was handcuffed at 9:15 a.m. May 14 while walking along the seawall. (YouTube/Screen grab)
Police apologize after wrongly arresting B.C.’s first Black Supreme Court Justice

At 81 years old, the retired judge was handcuffed in public while out for a walk Friday morning

Most Read