Wills are vital for those wishing to protect their assets and ensure their loved ones are cared for. However, they are often a contentious area of the law where tricky family dynamics are brought to the fore.

Over the last few months, there have been several interesting cases in British Columbia involving will variations. Courts are generally hesitant to depart from the deceased’s wishes as expressed in their will. However, in specific circumstances, the court will decide that a will should be varied and proceed to make changes to it.

Recent Will Variation Cases

British Columbia’s Wills, Estates and Succession Act provides the statutory framework for varying wills. Section 60 states that the deceased’s spouse and children can apply to have the will varied. The family member applicant will typically argue that the will-maker did not adequately provide for them. If the court agrees with the applicant, it can order a redistribution of the deceased’s estate.

Such was the case in Kan v. Cheong, which we discussed at length in a previous blog. There, the testator died with three adult daughters but chose to leave the bulk of his estate to two of them. The testator’s eldest daughter claimed that the will did not adequately provide for her and that she was entitled to a larger share of her deceased parent’s estate. She ultimately convinced the court to vary the deceased’s will to rectify the inequitable distribution of their estate.

In another recent case, Lam v. Law Estate, the testator died with two adult children: a daughter (the plaintiff) and a son (the defendant). The plaintiff sought to vary the will under section 60. She argued that her mother’s distribution of her estate discriminated against her based on her gender. The plaintiff was successful, and the court varied the deceased’s will to better provide for the plaintiff.

Three Grounds for Challenging Wills

As these cases depict, wills are not written in stone. They may be varied on application by the deceased’s family members. However, the Wills, Estates and Succession Act includes other scenarios in which courts can challenge the validity of a will, thereby interfering with the testator’s supposed wishes.

A will can be challenged either before or after probate has begun. Wills are typically challenged by beneficiaries named under a previous will or by potential beneficiaries who stand to profit from intestacy laws if a will is deemed invalid.

There are three main grounds for challenging a will in BC. Each of the grounds—and an accompanying example—is outlined below.

The Will Was Improperly Executed

The Wills, Estates and Succession Act includes strict guidelines for writing wills. According to section 37(1), the following criteria be met:

  1. The will must be in writing.
  2. The will must be signed at the end by the will-maker.
  3. Two or more witnesses must sign the will in the will-maker’s presence. Section 40 clarifies that both witnesses must be over the age of majority and of sound mind.

If any of these guidelines are not met, the will’s validity can be questioned.

Such was the case in Poulk Estate, a 2018 case in the Supreme Court of British Columbia. The applicant argued that the will was invalid because it failed to comply with the section 37 requirements. They submitted that the deceased did not sign it at the end, nor did two witnesses sign it in the deceased’s presence. As a result of these deficiencies, the applicant maintained that the will did not accurately express the deceased’s testamentary intentions. The court concurred with the applicant that the will was invalid as it lacked the essential requirements for validity.

The Will-Maker Lacked Testamentary Capacity

Testamentary capacity is another component of a valid will. Testamentary capacity refers to the will-maker’s mental ability to decide how they want their estate distributed. In other words, they must be of sound mind.

For testamentary capacity to be proven, the testator must know and understand:

  • What a will is.
  • The nature and extent of their assets.
  • Any duties to dependents.

Additionally, the testator must be of sound mind.

In Halliday v. Halliday Estate, the plaintiff son challenged the validity of his deceased father’s will because he did not have testamentary capacity at the time of the will’s execution. The will-maker had been exhibiting signs of cognitive decline due to dementia. The court found that the testator did not understand the nature and extent of his property at the relevant time, and the will was henceforth deemed invalid.

The Will-Maker Was Subject to Undue Influence

Finally, a will can be challenged if a person has exerted undue influence on the will-maker. The concept of undue influence is set out in section 52 of the Wills, Estates and Succession Act. Undue influence is when a person exploits the will-maker’s vulnerability to manipulate their decisions concerning their will.

There is often a power imbalance between the will-maker and the person applying undue influence. For example, the will-maker might be ill or elderly and depend on the person exercising undue influence for their care.

To succeed in court, the claimant must establish that the will-maker was coerced—not merely persuaded—into acting against their true wishes. In Kerfoot v. Richter, a 2018 decision of the British Columbia Court of Appeal, the appellant was unable to meet this relatively high threshold. The appellant disputed the validity of her parent’s will on the grounds that the will was procured as a result of undue influence by her two siblings (the respondents). However, the court found that evidence of undue influence was insufficient.

CM Lawyers: Estate Lawyers Serving Vernon & Salmon Arm

The abovementioned cases show that courts are reluctant to depart from a deceased’s last will and testament. However, there are legal grounds to challenge a will’s validity in BC, whether due to improper execution, lack of testamentary capacity, or undue influence. A strong argument, along with ample evidence, is required to prove any of these claims.

If you are considering challenging a will on grounds that it was improperly executed, the will-maker lacked testamentary capacity, or the will-maker was subject to undue influence, our experienced estate lawyers can provide expert guidance. We can help you understand your rights and explore legal options to ensure a fair distribution of your loved one’s estate. Contact CM Lawyers in Vernon and Salmon Arm today for a confidential consultation by visiting us online or by calling our Vernon office at (250) 308-0338 or our Salmon Arm office at (250) 803-9171.