Who can Challenge my Will?
A death in the family is often a very emotional time and although a Will may not be the topic of discussion at that time, it is nevertheless very important to know the basics surrounding Wills and potential issues that may arise. In almost every province, a testator is allowed to exercise almost complete discretion over the distribution of their estate. However, BC has some of the most sympathetic laws in all of Canada.
In BC, the Wills, Estates and Succession Act (WESA), provides dependents such as a spouse and/or child with a legal right to challenge a Will. Under s.60,
if the will-maker dies leaving a Will that does not, in the court’s opinion, make adequate provisions for the proper maintenance and support of the will-maker’s spouse and/or children, the court may order a provision that it thinks just and equitable in the circumstances.
With that being said, it is important to know exactly who is considered a spouse and child. Section 2 of WESA states that a spouse is one of two people who are married to one another, or have lived in a marriage-like relationship for at least 2 years and this includes same-sex couples. It should also be noted that a spousal relation can come to an end upon separation. Separation can come in the form of legal separation or by actions taken by one of both parties. Former spouses cannot challenge the Will of their ex-partner. However, it is possible for reconciliation and regaining the right to challenge the Will.
According to WESA, a child in entitled to challenge a Will if they are a natural birth child, or a step-child that has been adopted by the step-parent. A child that has not been adopted by the step-parent has no legal entitlement to challenge the Will.
There are other grounds that may result in an entitled party challenging your Will and these include;
Doubts from an entitled party about the mental capacity of the will-maker;
Belief that the will-maker was forced or coerced into making the Will a certain way; and/or,
Belief that the Will has been forged or falsified
There are timelines that should be noted if you are planning on challenging a Will. Once a Will has been certified by a court as being valid, it is deemed to be in ‘probate’. From the date that a Will goes into probate, you as a spouse and/or child, have 180 months (6months) to file a challenge in order to have the Will varied.
If you are looking to prepare a Will, it is important that you get in touch with a lawyer, who will be able to help you prepare a Will that will save your executor from having to deal with legal issues down the line, the cost of which would come from the estate.
It is also a good idea to work with a lawyer if you or a loved one is planning on challenging a Will. Estate litigation can become very complex and a lawyer will be able to help navigate you through the process.
