How can you dispute a will or defend the dispute of a will?​

The governing legislation in British Columbia for disputes and variations of wills is the Wills Estates and Succession Act ("WESA"). 

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Disputing a Will for being Invalid

In order to be valid, a will must follow the formalities found in Part 4 of WESA: (1) the will must be in writing, (2) signed by the will-maker, (3) in the presence of two or more witnesses present at the same time, who must also sign the will. If you find yourself in a situation where you are the executor of a will that did not meet these formalities and is being challenged for invalidity, it is possible that, on application to the court under Section 58 of WESA, that a will not meeting these requirements may still be deemed to be valid based on the intent of the will-maker at the time to creating the document.

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If the formalities in Part 4 of WESA are met, a will may still be deemed if there is proof that the will-maker lacked testamentary capacity or was under undue influence at the time of making the will. It is essential that the will-maker has knowledge and approval of the will they are making. Whether you are fighting to uphold the validity of a will, or fighting to disprove its validity, it will take a tremendous amount of effort to prove either way. Lawyers are not only trained to draft wills that consider these possibilities, but are also trained to scan for capacity and undue influence. It is highly recommended to use a lawyer, especially in cases where the will-maker's health is deteriorating., to avoid challenges to the will later on. 

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Disinheritance and Varying a Will

In circumstances where the will-maker has disinherited a family member from their will or has not made adequate provisions for a person whom they had a moral obligation to do so, that individual can make an application to have the court vary the will in their favour. The first obstacle to overcome when applying to vary a deceased's will is that there is a restrictive class of people under WESA who are eligible to make such an application. Only the spouse, biological children and legally adopted children of the will-maker are able to bring a claim to vary the deceased's will. Two persons are spouses of each other if they were married or they have lived with each other in a marriage-like relationship for at least two years. This can often be a point of contention when a common-law spouse must provide evidence of their relationship to prove they have the standing to vary the deceased's will. 

 

Lawyers will often advise client's against making uneven distributions in their wills to avoid the possibility of challenges by family members later on. Will-makers almost always say that their family would never fight over their estate, but it happens much more frequently than most would believe. It is important to consult with a lawyer to help you protect your estate from challenges because, in the end, you'd rather your estate goes to your beneficiaries, rather than see it being eaten up by a lengthy court battle.  

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