Challenging the validity of a will

There are several reasons a will might be found to be invalid. (We’ll explore them below.) If a will is proven in court to be invalid, its instructions will be ignored. 

If a will is invalid, the will-maker’s most recent valid will is followed. If there’s no previous will, the estate will be divided under the law as if there were never a will at all. For this reason, challenges are often made by beneficiaries named in earlier wills, or by those who would’ve been entitled to a share if there was no will.

Under the law, there are specific requirements about how a will must be signed and witnessed. Generally, for a will to be valid:

• it must be signed on the last page by the will-maker in front of two adult witnesses

• the witnesses must be present at the same time

• the two witnesses must then sign the will in front of the will-maker

• the will-maker must be at least 16 years old

If it looks like there’s a problem with how a will was signed or witnessed, you might be able to challenge it. But if you’re thinking of doing this, know that the court can “cure” a will that doesn’t meet these formal requirements. To do so, the court has to be satisfied that the will is authentic. And that it records the deceased’s final intentions. The court can consider any record, document, email, or text message to help learn the deceased’s intentions for their estate. In fact, the court can declare that one of these documents is itself the will, in certain circumstances.

“My cousin Sami had a stroke in 2010. He suffered from memory loss and facial paralysis. He had trouble walking and finding his words. He went through months of rehabilitation for his body and his brain. In 2011, he asked a lawyer to help him make a will. In it, he named me and another cousin as the only beneficiaries. His sister is now challenging the will on the basis that Sami wasn’t capable of signing it. She would receive Sami’s whole estate if the court finds that his will isn’t valid.”

– Carl, Surrey, BC

Even if a will appears to meet the technical requirements of the law, a court may decide it isn’t valid if the will-maker lacked the mental capacity to make it. This type of challenge is common with wills created late in life. Or when the will-maker has an illness that could affect their judgment, such as dementia.

A person can be eccentric, or suffer from some cognitive impairment, and still be able to make a valid will. However, they must have testamentary capacity. This means they must be able to:

• understand they’re making a will

• understand that the will determines what will happen to their property after they die

• appreciate the nature and value of all of the property they own, including what will pass through and outside of the will

• understand who their next-of-kin are and appreciate that their will should, if possible, adequately provide for their spouse and children and not unfairly exclude them

“I grew up in Salmon Arm, but moved to Vancouver shortly after high school. When Mom passed away, I was worried for Dad. He didn’t have anyone else around to take care of him. But we were equally stubborn — Dad didn’t want to move to the city, and I didn’t want to move back home. After Dad died, I was shocked to find out he’d changed his will to leave a huge chunk of money to a new younger friend, Shelby. He’d only ever mentioned her in passing. I’m convinced she took advantage of his loneliness and vulnerability, and pressured him into leaving her some money.” 

– Serena, Vancouver, BC

Seemingly unreasonable terms in a will can raise the suspicion that the will-maker was pressured, forced or influenced into making them. The court can disallow any gift or inheritance if it was given because of undue influence on the will-maker. In these cases, the will is not considered a reflection of the will-maker’s true desires.

Most people exert some level of influence over those they love. There’s nothing improper in suggesting to someone that they remember you in their will. But if you threaten to, say, stop taking care of them if they don’t leave you a larger share of their estate, that’s undue influence. Similarly, you can’t: 

• threaten or use violence

• use heavy persuasion on the will-maker in the final days of their life

• mentally exhaust them to the point they agree with your requests 

• isolate them

• continually bad mouth your siblings to get your parent to write them out of the will

The court will cancel any will it believes was made under undue influence or coercion. Under the law, if you’re contesting a will for undue influence, you need to show that someone was in a position to take advantage of the will-maker. (Or in the law’s language, to dominate the will-maker or make the will-maker depend on them.) The person you’re accusing of such conduct would then have to prove they didn’t unduly influence the will-maker. If they can’t, the will is invalid.

“When Mom died, I was shocked to find out her will said to distribute her estate ‘equally to her daughters.’ This meant that, as her son, I’d been left out completely. We had a great relationship. It just didn’t make sense! I reached out to the lawyer who’d helped Mom write her will. He checked his notes. They showed that Mom had told him she wanted to leave an equal share to ‘all of my children.’ But the lawyer thought Mom only had daughters! We can make an application to the court to fix this mistake, so that Mom’s will reflects her true wishes.”

– Joaquin, Kelowna, BC

There are other reasons you may want to challenge how the estate should be distributed:

• There was a mistake in the will. The will-maker may have gifted something they didn’t intend to, because of a mistake by them or their lawyer. The mistake may be due to fraud or it may be accidental. The law gives the court wide powers to rectify (that is, fix) a mistake in a will. 

• The will-maker revoked their will. That is, they cancelled the will.

• The language used in a will is vague or uncertain. The executor may have to apply to court to have the will interpreted. For example, the will may make a gift to a charity that doesn’t exist. 

• The will-maker failed to provide for an individual in their will. Consider a spouse who pitched in to help buy property that was registered only in the deceased’s name. Or an employee who worked in the will-maker’s business for little or no pay. Such people may have expected that their role in “enriching” the will-maker would be reflected in the will. If you want to challenge a will for similar reasons, speak to a lawyer about making a constructive trust claim or an unjust enrichment claim.

If you have a problem like the ones described, you should see a lawyer. These kinds of disputes are typically complex. Your best chance of success is to have an expert take you through the legal process. 

A lawyer will tell you what steps to take, including what documents you’ll need to file with the court. You may be able to challenge the validity of the will with affidavit evidence; this would involve filing documents with the court. Or, you may have to present oral evidence at a trial.

When trying to find a lawyer to take your case, feel free to shop around. Ask each lawyer how much it’ll cost. You should be able to get some free estimates. 

If you want to dispute the validity of a will, or otherwise oppose the issue of a grant of probate or administration, you should file a notice of dispute with the probate registry right away. This document puts the brakes on the proceedings. It prevents the court from issuing a grant until the notice is withdrawn or cancelled. The notice expires after 12 months, and can be renewed.

Filing a notice buys you some time. Talk to a lawyer to help you figure out next steps to take. To challenge the validity of a will this generally means filing a document called a petition to start legal proceedings. The petition includes a statement of facts supporting your claim.  You are also required to file sworn written evidence to support those facts.

There are deadlines, called limitation periods, that must be met if you want to challenge a will. If you miss the deadlines, it may be too late. If you’re thinking of contesting the validity of a will, there’s generally a two-year limitation period to bring your claim. This means you must start your legal action within two years from the date you know — or should have reasonably known — that you have a claim. 

If you want to pursue legal action, you should contact a lawyer straight away to talk about your options.

Try to start your action before the will is probated. It’ll be harder to recover any money that’s already been given out if you’ve delayed too long. Probate is a legal procedure that confirms the will is legally valid. An executor generally can’t distribute an estate until 210 days after a grant is issued. After this time, they can start distributing the will if no claim is made against the estate. 

If there’s no will, the deceased’s estate is distributed according to the law. Generally, it goes to the spouse, children, and descendants (for example, grandchildren). If there’s no spouse or descendants, the estate will go to other relatives. Our information on when someone dies without a will explains in more detail how an estate is divided if there is no will. 

There are alternatives to going to court. These include mediation or settlement negotiations. If you want to settle the dispute of court, keep an open mind. Try to be flexible and creative about the solutions that may work. 

You should still file a notice of dispute. This will signal the court not to issue a grant of probate or administration. Without a grant, the executor doesn’t typically distribute the estate. This will buy you some time to try to resolve the issues with the other parties

Generally, an executor needs to be named as a party to any legal proceeding relating to the estate. Usually, their legal fees are fully paid from the estate money. (Whether or not they take a big role in the proceeding depends on the type of claim that’s being made.) At the end of the day, though, who must pay for what costs is up to the court to decide.