Garton & Harris

Do you have grounds to contest a will?

Shock, disappointment and confusion may be just a few of the emotions you felt when you learned that your loved one's will was not what you expected. In fact, perhaps you had seen your parent's will, and the contents of the will discovered after his or her death was not the same as the one you had read. The sudden and drastic changes in the distribution of your parent's estate has raised suspicion, and you wonder if you have cause to contest the will in court.

Disputing the contents of a will is a complex and challenging undertaking. After all, your loved one is not present to defend or explain the choices in the will, and the courts tend to assume the will expresses the wishes of the deceased. However, there are some grounds for setting aside the contents of a will.

What will the courts consider?

You may feel that your personal or financial contributions toward your loved one qualify you for a larger inheritance than you received. On the other hand, you may feel that your sibling should receive a smaller share, especially if your parent supported the sibling financially or if the sibling was estranged from the family. Another common situation is when a caregiver inexplicably receives a large portion of the estate.

Any of these or other scenarios may compel you to question the validity of your loved one's will. However, the courts in British Columbia carefully weigh will challenges using the guidance of the Wills Act. If you choose to dispute your inheritance, the courts will consider these and other questions:

  • Did your loved one understand the terms of the will he or she signed and willingly agree to those terms?
  • Did your loved one know and remember the assets included in the will and the relationships of the people named in the document?
  • Did your loved one suffer from a mental disorder?
  • Did your parent's poor health make him or her vulnerable to undue influence?
  • Are there suspicious circumstances that suggest someone threatened or coerced your loved one into changing the will?

Some of those suspicious circumstances may include someone isolating your loved one from other family members, secretly changing the will or including terms in the will that seem unnatural or disproportionate.

As a child of the deceased, you have a moral claim to the estate of your parent, and the court has guidelines that address disinherited children and spouses. With the assistance of a legal professional, you may be able to reclaim your fair share of the inheritance.

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