When Can You Dispute a Will: Wills Variation
When a loved one has passed, you may have believed that their will contained adequate provisions for you and your children. However, if you find that such steps were not taken, you will need to undergo the wills variation process in British Columbia. But the process isn’t cut-and-dry, Klein Lawyers explains.
Estate Litigation: When You Are Questioning the Validity of a Will
There are numerous reasons why the provisions of a will may be disputed by the surviving family members of the deceased. Common estate variation litigation arguments include:
- Undue Influence: Undue influence occurs when a person (the will creator) is pressured to perform a legal act that he or she does not truly wish to perform. This can occur when a person, sometimes a family member or caregiver, influences or pressures another person to create a will that suits the other person’s best interests.
- Testamentary Capacity: Testamentary capacity is the ability of the will creator to legally create the will. Testamentary capacity comes into question when a loved one is suffering from a health issue that leads to them not being of sound mind, memory, or ability.
- Unjust Enrichment: Unjust enrichment occurs when one person manipulates the testator into naming a beneficiary at the expense of the testator’s own interests and against his or her actual, familial beneficiaries.
- Partition Of Property: Partition of property occurs when beneficiaries of the estate cannot agree on shared assets like the family home and how they will be divided.
There are tests to determine if your wills variation case falls under one of these categories.
In order to determine if a testator was subject to undue influence, the individuals disputing the will must prove another person in a position of power:
- Used that position unduly to influence the will-maker,
- Used that position where the potential for dominance was possible, and
- Is gaining a gift from the will whose merit can be challenged.
The court will use the following test to judge the testamentary capacity of the will-maker. Was the will-maker able to:
- Understand the nature/effect of the will;
- Understand the nature of the deceased’s property;
- Understand what was being bequeathed under the will;
- Remember the persons who might be expected to benefit from the will; and
- Understand the nature of any claims that may be made by a person who is excluded from the will.
To prove the existence of unjust enrichment, the courts will review the following:
- One party is enriched;
- The other party suffered a corresponding deprivation; and
- The enrichment and corresponding deprivation occurred in the absence of a legally justifiable reason.
Partition of Property
When disputes arise over the distribution of property in an estate, the courts will look at the percentages in which the home is owned by each party to determine how the property will be divided. This includes whether the property will be sold, kept, and how the value of it will be distributed.
In some cases, where one party is in favor of keeping the property, the court will need to be shown the reason why it cannot be sold.
In addition, if the home is to be split between a spouse and the children, the court will decide if the provision of the will doing so leaves adequate provisions of maintenance to the spouse who was living in the family home and what actions should occur next.
When Can You Dispute a Will: Klein Lawyers LLP
Whether you suspect something is amiss in your loved ones’ will, or the provision left behind for you simply does not make sense, you may want to undergo the wills variation process in British Columbia. At 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.