Common Reasons a Will May Undergo Estate Litigation
There are a variety of reasons why a will may be disputed and need to undergo estate litigation. However, many estate litigation lawyers find that some situations appear more often than others. If you are a spouse or child who feels that something is amiss with a loved one’s will, you may be considering whether you want to undergo the wills variation process.
Three of the most common reasons to contest a will include:
- Lack of adequate provision for the proper maintenance and support of the will-maker’s spouse or children;
- The will was created as a result of undue influence; and
- Lack of testamentary capacity.
Lack of Proper Maintenance and Support
According to section 60 of British Columbia’s Wills, Estates and Succession Act:
“Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”
In light of this obligation, the courts in British Columbia have broad discretion in varying a will to provide for the spouse and children.
To determine whether adequate provision has been made, the courts will determine:
- If the current terms of the will provide adequate provisions; and
- If the will does not, the court must consider a distribution which would be adequate.
One or more parties may exert an undue influence on the testator by applying pressure or coercion. In general, undue influence occurs when someone who is in a position of trust or power pressures another individual to act in a way that is not in their best interest. This may include:
- Large assets of the estate going to a caretaker who has mentally abused the testator;
- Family members being left out of wills;
- Family members being painted as villainous to the testator, leading them to believe that what they are doing is justified; and/or
- Physical control
In estate law, “capacity” refers to the ability of a testator to make a will that is legally valid. Capacity may be at issue if it can be proved that your loved one was suffering from dementia, senility, or a mental illness that affected his or her decision making and judgment at the time the will was made.
The historical case Banks v Goodfellow, established that for testamentary capacity to be met, the will-maker must:
- Understand the nature and results of the will;
- Understand the extent of the property that will be dispersed and to whom; and
- Comprehend and appreciate the claims of those around him.
Testamentary capacity may be called into question alongside allegations of undue influence, or be related solely to the competence of your loved one.
While there are other reasons to vary a will, these common incidents may be able to help you and your family to determine if there is something wrong with your loved one’s final estate wishes.
Contact Our Wills Variation Lawyers Today
If you are preparing to undergo the wills variation process, you’ll need an experienced lawyer who is committed to winning the maintenance and support you deserve.
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.