What is Wills Variation and estate litigation in Vancouver BC?

If you were left out of a loved one’s Will and would like to be added to the Will as a beneficiary, or if you find the distribution of assets among the beneficiaries of a Will is unfair, you can apply to the courts to change the Will. In British Columbia this is often referred to as a “Wills Variation Action” and is governed by the Wills, Estates and Succession Act.

How do I challenge a Will?

In British Columbia, a Will can be challenged or varied if a person dies leaving a Will that does not make adequate provision for the proper support of the will-maker’s spouse or children. If the court finds that the Will does not provide sufficient support, they will make an order which changes the Will in a way that the court determines is just and equitable in the circumstances. In other words, if a child or spouse is left out of the Will or given a smaller amount than is fair, the court has the power to determine how the deceased’s estate should be distributed.

Can anyone apply to change a Will?

In order to bring a Wills Variation claim, you must be either a spouse or a child of the deceased.

A spouse is defined as either a person who was married to the deceased, or who lived with the deceased in a marriage-like relationship for at least two years. The status of a spouse is fixed at the date of the will-maker’s death, meaning the spouse’s remarriage after the will-maker’s death will not prevent the spouse from asking the court for a Wills Variation Order. A divorced spouse has no standing as a spouse, and a person ceases to be a spouse in the case of a marriage-like relationship if one or both persons terminate the relationship prior to the will-maker’s death.

A child can apply for a Wills Variation if they are a birth child of the will-maker, or a legally adopted child of the will-maker. A child is able to bring a Wills Variation claim even where they are an adult and self-supporting.

I don’t want my Will to be challenged, what can I do?

If you intend to draft a Will which does not make adequate provisions for your spouse or children, the court may accept as evidence signed written statements regarding your reasons for failing to do so. In the case of not wanting to provide for an estranged child, for instance, a will-maker may provide evidence that they were estranged, or that they provided adequately for their child during their lifetime. To inquire about this please feel free to reach out for a free consultation.

When can a Will be challenged?

An action for Wills Variation can be commenced against the estate once the grant of probate has been issued, and must be commenced within 180 days from the date of the grant.

What if I am not a spouse or child of the deceased – can I still challenge a Will?

Yes, you cannot use a Wills Variation Action, but you may be able to challenge the validity of a Will. It is possible to challenge a Will under certain circumstances such as improper execution, undue influence, or mental incapacity of the will-maker.

For more information on challenging a Will, please see our blog post Challenging the Validity of a Will.

What are the costs of challenging a Will?

The cost will vary on the complexity of the situation and the time spent in obtaining a resolution. We charge on a contingency fee basis, meaning our fee would be a percentage of the assets recovered or if preferred on an hourly basis.

Why choose M.J. O’Nions to challenge a Will?

We have over 24 years of experience in both successfully challenging and defending Wills Variation Actions. We have dealt with the most complex estates, including estates over $100 million.

Should you require further information on estate litigation, contesting a Will or a Wills Variation Action please complete our contact form below or call us at 604-449-7779. We would be honored to assist you.

You may also wish to visit our Blog Contesting a Will – How To Contest A Will.