Who Can Contest a Will in British Columbia?
Most people do all they can to take care of their loved ones. This mindset applies in preparing for death as well as in life. Making a will is an important step of providing support to family members in the event of one’s passing.
Unfortunately, some wills fail to make adequate provision for loved ones who are entitled to an estate. Although individuals who make a will (known as testators) enjoy considerable latitude in naming beneficiaries and distributing assets, certain family members are entitled to maintenance and support from the testator.
If you believe your loved one’s will does not adequately provide for you, a Vancouver wills variation lawyer can help you bring a claim against the estate. Contact Klein Lawyers today for a free consultation.
Who Has a Claim to Vary a Will?
The individuals who can make a claim for variation of a will are identified in the Wills, Estates and Succession Act (“WESA”) of British Columbia. According to the WESA, potential claimants in a wills variation case may include:
A spouse is someone who was legally married to the testator at the time of his or her death. Same-sex partners have the same rights as spouses who are in heterosexual unions.
The WESA also defines a spouse as someone who was engaged in a “marriage-like relationship” with the testator for a minimum of two years prior to his or her passing. Unmarried couples may be considered to be in a marriage-like relationship if they live together in the same residence, share household duties, support one another financially, etc.
In the event of a divorce (in the case of a marriage) or a separation (in the case of a marriage-like relationship), the surviving partner is not considered a spouse.
Read More: What Constitutes a ‘Spouse’ Under WESA?
Both adult and minor children may have a valid claim for maintenance and support from a deceased parent’s estate. When hearing a claim to vary the will, the court will take into account multiple factors to determine what constitutes an adequate provision for the decedent’s children, including the parent’s relationship with the child or children prior to death, the child’s financial situation, and more.
The testator has a duty to make provision in the will for natural and adopted children. Although the testator may choose to name a stepchild or stepchildren in the will, stepchildren cannot make a claim to vary the will of a stepparent.
When Can a Spouse or Child Dispute a Will?
Now that you know who has the right to contest a will, it is important to know when you may have a valid wills variation claim. It is important to understand that simple dissatisfaction with the provisions of the will is generally not enough to bring a compelling claim for varying the will.
That said, the courts in British Columbia will consider the fairness of the will in determining whether or not the testator met his or her duty to “make adequate provision for the proper maintenance and support” of a spouse and/or children (per Section 60 of the WESA). The court has the discretion to vary a will it deems unfair, potentially ordering that payment(s) be made and/or assets and property transferred to a spouse and/or a child or children of the decedent.
Alternatively, spouses and children pursuing wills variation claims can present evidence that challenges the validity of the will. If the testator was subject to undue influence or lacked the capacity to make a valid will, the court may order variation of the will to make adequate, just, and equitable provision for a spouse and/or children.
Get Started on Your Wills Variation Claim
The reading of a loved one’s will can lead to surprises. Some beneficiaries may be well provided for while others are disappointed by what the decedent leaves them. Perhaps you even suspect that your relative was unduly influenced in drafting the will or suffered from issues that call their capacity into question.
If you are the spouse or child of someone who is recently deceased and you believe your loved one’s will does not provide you with proper maintenance and support, you may have a wills variation claim. Contesting a will is not easy, and it is important to have knowledgeable legal guidance throughout the process.
Klein Lawyers can advise you of your rights concerning variation of your loved one’s will. Our team can assess the details of your case, build a strong claim on your behalf, and present your case in court.
Please contact Klein Lawyers at (604) 874-7171 today for a free consultation with a Vancouver wills variation lawyer. Our team proudly serves clients throughout British Columbia.