In British Columbia the governing legislation dealing with matters of wills and estates is the Wills, Estates and Succession Act (WESA).

What are the grounds for challenging a will?

By virtue of s. 60 of WESA, where the deceased fails to ‘make adequate provision for the proper maintenance and support of the will-maker’s spouse or children,’ the courts may order that provisions it thinks are adequate, just and equitable in the circumstances, be made out of the will-maker’s estate. In other words, if a child or spouse believes that the will does not adequately provide for their proper maintenance and support, he/she may ask the court to vary the will seeking a redistribution of the deceased’s estate.

Can family members contest a will?

Yes, pursuant to s. 60 of WESA, will variation claims can be made by children or spouses of the deceased. Spouses, for the purposes of the legislation, include common law partners. Children, for the purposes of the legislation, include adopted children.

The claimant (the one making the claim to have the will varied) has 180 days (6 months) to commence an action from the date the grant of probate is issued. The claimant must also serve the notice on the executor of the will within 30 days after the expiration of the 180-day period.

Chances of successfully contesting a will:

The chances of successfully contesting a will depends on the facts of each case. But, as a general rule, if in fact, the will doesn’t make adequate provisions for the proper maintenance and support for the deceased’s child or spouse, then you have a strong case for challenging the will. Bear in mind, if you plan to commence an action, you must be one of the individuals legally entitled to bring a will variation action (i.e. child or spouse).

To give you a more accurate answer to the likelihood of your success, please contact us for an appointment so that we can assess your situation and advise you accordingly.

Average cost to contest a will:

The average cost will depend on the complexity of the situation. If the matter can be resolved between the parties without proceeding to a trial, this could substantially minimize the costs.

To provide you with an approximate assessment of cost that is specific to your case, please contact us.

Who pays to contest a will?

Generally the claimant bears the cost of challenging a will. If the claimant is successful in getting the cost granted by a judge, it would come out of the deceased’s estate.

Does the executor of a will have the final say?

The judge ultimately has the final say in a wills variation action. However, if the executor and other beneficiaries consent to the will being varied, then a judge would likely uphold the variation of the will.

We hope this article helps answer your questions about contesting a will. Should you have any questions or require help with commencing a wills variation action, please contact us at 604-449-7779.