FAQ | Estate Litigation

The cost of contesting a Will in British Columbia can vary widely depending on various factors such as the complexity of the case, the length of the legal process, and the specific legal fees charged by a lawyer or law firm engaged for the representation. Legal fees associated with contesting a Will in British Columbia may include initial consultation fees, retainer fees, hourly rates, court filing fees, and other disbursements. In general, contesting a Will can be a complex and time-consuming legal process that involves gathering evidence, filing court documents, engaging in negotiations or mediation, and potentially going to trial. As such, the costs associated with contesting a Will can add up quickly, and it's important to carefully consider the potential financial implications before pursuing legal action.

A Wills variation claim can only be made if there is a valid Will in place. If the deceased died without a Will, which is known as dying intestate, the rules of intestate succession under British Columbia's Wills, Estates and Succession Act (WESA) will determine how the estate is distributed among the surviving family members in accordance with the law. Under the rules of intestate succession in British Columbia, the estate will generally be distributed to the surviving spouse, children, or other close relatives, in a predetermined manner depending on their relationship to the deceased. In such cases, a wills variation claim may not be applicable, as there is no Will to challenge.

If a Wills variation claim is successful in British Columbia, the court has the authority to make various orders to redistribute the estate assets among the claimants. For example, the court may order that the share of the estate assets received by the claimant be increased beyond what was originally provided for in the Will. The court may also order a different distribution of the estate assets than what was originally provided for in the Will. For example, the court may reallocate assets among the beneficiaries in a manner that it deems fair and reasonable based on the specific circumstances of the case. In some cases, the court may set aside the entire Will if it determines that the Will is invalid for various reasons, such as undue influence, lack of testamentary capacity, or failure to comply with the formal requirements for making a valid Will.

Yes, a Wills variation claim can be settled out of court through a negotiated agreement between the parties involved. In fact, many Wills variation claims are resolved through alternative dispute resolution methods such as mediation or negotiation, without the need for court intervention.

A Wills variation claim, also known as a Wills, Estates and Succession Act (WESA) claim, allows certain individuals, such as spouses or children, to challenge the distribution of an estate as outlined in a Will. The purpose of a Wills variation claim is to ensure that the deceased's estate is distributed fairly and adequately provides for the proper maintenance and support of the claimant. Generally, any assets that form part of the deceased's estate can be included in a Wills variation claim in British Columbia including real property (e.g., land, homes, buildings), personal property (e.g., vehicles, furniture, jewelry), bank accounts and other financial assets (e.g., savings accounts, investment accounts), business interests, life insurance policies, if payable to the estate and any other assets that are part of the estate of the deceased person.

The timeline for resolving a Wills variation claim in British Columbia can vary widely depending on various factors, including the complexity of the case, the court's schedule, and whether the parties are able to reach a settlement or if the matter proceeds to trial. As such, it is challenging to provide an exact timeframe for the resolution of a Wills variation claim.

In British Columbia, when considering a Wills variation claim under Section 60 of the Wills, Estates and Succession Act (WESA), the court will consider various factors in determining whether the distribution of an estate should be varied to provide for a spouse or child who has been left out of a Will or inadequately provided for. Some of the key factors that the court may consider in a Wills variation claim in British Columbia include the size of the estate, financial needs and circumstances of the claimant; financial needs and circumstances of other beneficiaries; moral obligations of the deceased; and testamentary autonomy, or a person's right to dispose of their estate as they see fit. Courts will assess the specific circumstances of each case on an individual basis, and the weight given to each factor may vary depending on the facts and evidence presented in a particular claim.

Yes, a disinherited spouse or child may have grounds to challenge a Will in British Columbia. Under the Wills, Estates and Succession Act (WESA) in British Columbia, a spouse or child who has been left out of a Will or has been inadequately provided for in a Will may have the right to bring a claim for variation of the Will. The court has the authority to vary the distribution of the estate to ensure that the spouse or child receives a fair and adequate portion of the estate, taking into consideration various factors, such as the size of the estate, the financial needs and circumstances of the claimant, the financial needs and circumstances of other beneficiaries, the deceased's moral obligations, and any other relevant considerations.

In British Columbia, the deadline for challenging a Will is generally within 180 days (6 months) from the date of the Grant of Probate or the date of the Grant of Administration, whichever is earlier. The Grant of Probate or Administration is the legal process that confirms the validity of a Will and allows for the administration of the estate. It's important to note that the deadline for challenging a Will in British Columbia is strict, and missing the deadline may result in your claim being dismissed. Therefore, if you are considering contesting a Will, it's crucial to seek legal advice from a qualified estate litigation lawyer as soon as possible to ensure you comply with the applicable deadline and protect your legal rights.

If you wish to contest a Will in British Columbia, you will need to follow the legal process for challenging a Will under the Wills, Estates and Succession Act (WESA) including determining the grounds for contesting the Will; initiating legal proceedings; serving the parties involved; attending court hearings and awaiting the court's decision.

A Will can be challenged on several grounds under the Wills, Estates and Succession Act (WESA) including challenging the mental capacity of the person making the Will at the time the Will was executed; challenging the validity of a Will on the basis that the person making the Will was unduly influenced by another person, such as a beneficiary or a person in a position of authority or trust, to create a Will that does not reflect their true wishes; and a failure to comply with the formal requirements for a valid Will under British Columbia law or the Will has vague or unclear language. Challenging a Will can be complex and requires legal expertise. If you believe you have grounds to challenge a Will, it's recommended to seek legal advice from a qualified estate litigation lawyer who can guide you through the process and provide you with the best possible representation.

In British Columbia, under the Wills, Estates and Succession Act (WESA), certain individuals have standing to challenge a Will. These individuals are generally referred to as “applicants” and include a spouse or common-law partner; children and dependent adult children. Not all family members or individuals have standing to challenge a Will. The law sets out specific criteria for who has the right to challenge a Will, and it may vary depending on the circumstances. Be aware that there are strict time limits for challenging a Will in British Columbia.

Wills variation is a legal concept in British Columbia that allows certain individuals to challenge the distribution of a deceased person's estate as outlined in their Will. The Wills, Estates and Succession Act (WESA) provides the legal framework for Wills variation claims. Under the WESA, certain individuals, including spouses, common-law partners, and children of the deceased, have the right to challenge the distribution of the estate if they believe that the deceased's Will does not make adequate provision for their proper maintenance and support. This means that if an individual believes they have not been adequately provided for in a Will, they can bring a claim to vary the Will in order to receive a larger share of the estate.

The court considers the following factors if you request a Wills variation:

• Your relationship with the deceased individual
• Your financial position
• Gifts you received (not included in the Will)
• The estate size

A Notice of Objection and eventually a Notice of Civil Claim needs to be filed in the British Columbia Supreme Court Registry.

Unfortunately, it is not possible to prevent someone from challenging your Will. However, there are steps you can take when creating your Will that will minimize the possibility of a dispute.