In British Columbia, the grounds for contesting a will and the evidence needed to support such claims are similar to those in other jurisdictions, but they must align with the specific legal framework of the province. The following are primary grounds for contesting a will in British Columbia and the evidence typically required to do so.
Grounds for Contesting a Will:
- Lack of Testamentary Capacity : A will can be contested if the testator did not have the mental capacity to understand the nature and effect of the will at the time it was made. The testator must comprehend the extent of their estate, the claims of potential beneficiaries, and the implications of the will’s provisions.
- Undue Influence : If the testator was subjected to coercion or manipulation that overpowered their free will, the will can be contested. This often involves situations where a person in a position of trust, such as a caregiver or family member, exerts pressure on the testator.
- Fraud or Forgery : A will may be contested if it is alleged that the document was forged or that the testator was deceived into signing it. Fraud involves trickery or deceit that leads the testator to make decisions they would not have otherwise made.
- Improper Execution : The will must comply with the formal requirements set out in the Wills, Estates and Succession Act (WESA) of British Columbia. This includes proper signing and witnessing. Failure to meet these requirements can render the will invalid.
- Revocation : A will can be contested if there is evidence that the testator revoked it before their death. This could be through a subsequent will or a clear intention to revoke the existing will.
Evidence Required for Claims:
- Lack of Testamentary Capacity
- Medical records or expert testimony from healthcare professionals indicating cognitive impairment at the time the will was made.
- Testimonies from witnesses familiar with the testator’s mental state and behavior.
- Undue Influence
- Testimonies from individuals who observed the relationship between the testator and the alleged influencer.
- Documentation, such as emails or letters, indicating pressure or manipulation.
- Evidence of the influencer’s control over the testator’s decisions or isolation from others.
- Fraud or Forgery
- Forensic analysis of handwriting to determine authenticity.
- Witness testimonies regarding the circumstances of the will’s signing.
- Evidence showing the testator was misled or deceived.
- Improper Execution
- Testimonies from witnesses about the signing process and whether legal formalities were followed.
- Documentation showing non-compliance with statutory requirements.
The burden of proof lies with the person contesting the will, and they must provide sufficient evidence to support their claims. If successful, the will may be invalidated, and the estate will be distributed according to a previous valid will or the intestacy rules under WESA.
At Northam Law, we can help review your wills to ensure that it is prepared according to WESA rules while still adhering to your wishes. Contact us today to learn more of what we can do to assist you.
