Elements of Disputing Wills

There are many ways to contest or challenge the validity of a will. If you have questions about the elements of disputing wills in Vancouver, Surrey or the surrounding areas of British Columbia, this page is for you.

What Are the Elements of Disputing a Will? | Klein Lawyers

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. A will may be disputed with allegations of invalid creation, lack of testamentary capacity, or undue influence. If the will is disputed and the court finds that the will is valid, the will remains intact.

However, if the will is contested and found to be invalid, the testator’s previous will is to be used–should one exist. If none exists, it means the deceased died intestate.

The courts will then distribute the estate under the Wills Estates and Succession Act (WESA).

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 will under the doctrines of testamentary capacity, undue influence, unjust enrichment, etc.

3. Interpreting 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

A will may be contested 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. While children and spouses have a right to contest a will, it is important to examine the terms of a trust or mutual will that spouses may have created together.

Under a “mutual will” or “mutual will agreement,” two people agree to dispose of property in a certain way, so as not to break the agreement after one of them dies. While enforceable in British Columbia, the laws still remain unclear in many situations.

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.