I. Introduction
There are a numbers of ways to “contest” a will or estate – challenge the validity of the Will, vary the terms of the Will or make another type of claim against the estate. The following discussion is a general overview of the legal principles involved and is only applicable to the law in British Columbia. If you have a situation arising in another province or country, you should contact a lawyer in that jurisdiction as all provinces and countries have their own legislation that governs these issues.
II. Challenging The Validity Of A Will
In order to challenge the validity of a Will, a probate action must be commenced. If a Will appears to be executed properly, the Court will deem it to be valid unless someone comes forward with allegations of improper execution, testamentary incapacity, or undue influence. Usually those making the allegations are beneficiaries named under a prior Will or beneficiaries if, as a result of the Will being declared invalid, the deceased will die without a will (i.e. dies intestate).
One of the executor’s duties is to try to uphold the validity of a Will. The executors must prove that the Will was properly executed and that the testator had “testamentary capacity.” The person alleging undue influence must prove that aspect unless the will maker was being influenced by a person that would exercise influence over the will maker (such as a caregiver); in that case the onus is reversed. If these types of allegations are made, the executor will commence a probate action to “prove the will in solemn form”. A caveat can be filed by a beneficiary or interested party setting out the allegations – this prohibits the Will from being probated in “common form” – i.e. without commencing an action or having a trial to prove the will.
