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Conditions under which wills may be contested

As death is inevitable, it only makes sense to plan ahead for when it happens. Wills are the cornerstone of estate planning, and are the most common method used in British Columbia for distributing an estate. In an ideal world, the will passes through probate and administration without a hitch, and everyone tries as best as may be to get through a difficult time. Unfortunately, matters do not always transpire so easily.

One of the most common hindrances to a smooth probate and administration is a challenge to the will. There are a few reasons for which an individual can challenge the will. For example, a person may come forward and assert the testator showed a lack of mental capacity at the signing of the will. If there is evidence to suggest the signor was not of sound mind, which is a legal requirement for making a valid will, a judge could overturn the will, or portions thereof.

Coercion is another basis for contesting a will. It may be perceived that undue influence was exerted over the deceased person, resulting in a bequest that may not otherwise have been included. The judge can assess if there are any suspicious inclusions, or if there is evidence of a person taking advantage of a position of influence over the testator.

Finally, the very wording of the will could be the reason for a challenge. Anything that seems vague or contradictory could invalidate the will. Technicalities, such as no witnesses to the signing, or if the witness or witnesses were too close to the deceased, such as a spouse or other beneficiary, can also be the undoing of a will.

The last thing anyone wants is to leave their heirs confusion and frustration in place of loving gifts. To minimize the risk of a challenge to a will, professional help may be the best option. A British Columbia lawyer who has assisted with the writing of many wills can use his or her experience to help create a document that will hold up to scrutiny when it matters most.

Source: FindLaw Canada, "Contesting or challenging a will", Accessed on April 1, 2017

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