Elements of Disputing Wills
There is no one way to contest or challenge the validity of a will. However, there are certain legal acts that will most likely occur within court. If you have questions about the elements of disputing wills in British Columbia, this page is for you.
1. Probate Action Initiated
The first step in disputing a will is initiating a probate action to determine if the will was executed properly or not. If the court finds that the will is valid or no one comes forward with allegations of invalid creation, lack of testamentary capacity, or undue influence, the will remains intact.
At this point, if the will is invalid, the testator’s previous will is to be used, should one exist.
But, if the will is invalid or someone does come forward alleging foul play, the will may be declared invalid which means the deceased died intestate.
The courts will then distribute the estate under the Wills Estates & Succession Act.
In these cases, the executor must try to uphold the validity of the will.
It is important to note that if a grant of probate has been issued to the executor before the probate action occurred, the action can still be initiated; however, courts prefer the probate action be initiated first.
2. Wills Variation
Once probate has been granted, an action against the estate must begin within 180 days from the date probate is given. Should the courts decide to vary the will, they must consider various elements of the estate such as the size, the financial situation of each claimant, relationship to the deceased, gifts given/received, etc.
Courts will also review the possibility of testamentary capacity, undue influence, unjust enrichment, etc.
3. Interrupting The Language in Wills
In cases where the language of the will is vague, the executor may have to ask the court to interpret the will. Such issues that may require interpretation include:
- The beneficiary is not clearly defined
- Property is not clearly defined
- Clauses in the will give the executor authority to do certain tasks that otherwise would not be permitted
4. Contesting a Will
In cases where a spouse or child was depending on the estate to care for them after the deceased’s death but he or she was not included in the will or not in the way it was assumed they would be, a will may be contested. While children and spouses have a right to do so, it is important to examine the terms of a trust or mutual will that the spouses may have created together. This can complicate the matter and require an experienced wills variation lawyer.
Elements of Disputing a Will: Klein Lawyers LLP
Disputing wills can be a complicated but necessary legal process you and your family have to go through. If you find that you must undergo the wills variation process in British Columbia, you need to call Klein Lawyers. Our estate litigation lawyers will review the will and navigate the legality of your claim, ensuring you get what is rightfully yours.
Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.