Validity of Wills
When there are concerns over the validity of wills, there are certain checkpoints that the court will utilize to ensure that the will was created legally before diving into questions of undue influence, testamentary capacity, etc. Klein Lawyers LLP explains.
What Makes a Will Valid?
Under the Wills, Estates and Succession Act, a will is valid if:
- The will is in writing;
- Signed by the will-maker;
- The signature is made or acknowledged by the will-maker in the presence of two or more witnesses who are present at the same time;
- Two or more witnesses must sign the will in the presence of the will-maker;
- The will-maker is at least 16 years of age; and
- The witnesses must be at least 19 years old.
If the above has not occurred, or the court finds that the will-maker or witnesses were not of sound mind/age, the will may be deemed invalid.
Invalid Wills and Inadequate Provisions
As defined by Section 2 of the British Columbia Wills Variation Act, a will must make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. Should that not occur, the court may exercise its discretion to vary the will to make provisions for the family members which the court finds to be adequate, just, and equitable.
Under the Act, the family need not necessarily prove financial need but rather the court will use the test of “adequate and proper maintenance and support” to determine if the will-maker was “acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards.”
Who Can Bring a Claim of Invalid Wills in British Columbia?
In British Columbia, a claim of invalid wills can only be brought by a spouse or child of the deceased.
Under BC law, a spouse includes same-sex or common-law spouse so long as the couple had been cohabiting in a marriage-like relationship for at least 2 years prior to the will-maker’s death.
In addition, children are those who are biological or adopted, but not stepchildren. However, provisions can be made within a will to supply provisions for step-children, but those provisions must be explicit.
If there are issues of unacknowledged biological children, DNA testing may be needed to prove the ability to make a claim.
Contact Our Wills Variation Lawyers Today
When you have concerns that a will created by a deceased loved one is invalid on face value, it can likely stir mixed emotions for the entire family. However, knowing the basics of what makes a valid will can help you determine what issues may or may not exist.
In addition, if you believe the will is invalid, not based on creation but rather third-party intervention, there are options to vary the will and contest its validity in court.
With all of these factors in mind, it is important to work with 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.