British Columbia Law
Contesting a Will in BC: Grounds & How the Process Works
Not every will stands unchallenged. Sometimes a beneficiary believes the deceased was pressured, lacked mental capacity, or the will was forged. BC law provides a process for challenging wills - but strict rules and tight timelines apply. Here is what you need to know.
Grounds for contesting a will in BC
1. Lack of testamentary capacity
The person making the will (testator) must have had mental capacity at the time of signing. Testamentary capacity requires:
• Understanding the nature of making a will
• Knowing the extent and value of assets
• Understanding who would naturally inherit (spouse, children, etc.)
• Being free of delusions affecting the will
A will can be challenged if the testator suffered from:
• Dementia or Alzheimer's disease
• Mental illness
• Uncontrolled substance abuse
• Effects of medication impairing judgment
• Extreme old age causing cognitive decline
However, a testator need not be in perfect mental health - they only need sufficient capacity to understand their will's terms and implications.
2. Undue influence
Undue influence occurs when someone exerts excessive pressure or manipulation on the testator, causing them to change their will against their true wishes. Examples:
• A caregiver isolating the testator from family and suggesting changes
• A family member threatening the testator or the testator's pets
• A partner using emotional manipulation or control
• Excessive flattery or promises to induce changes
Undue influence requires showing:
• The testator was vulnerable (elderly, ill, isolated, dependent)
• The influencer had opportunity and motive
• The testator's will was contrary to their natural affections or previous wishes
• The influencer benefited significantly from the changed will
3. Improper execution
A will must be executed according to legal requirements. If it fails, it can be challenged:
• Not signed by the testator
• Not witnessed by two independent witnesses
• Signed by testator and witnesses at different times (though timing rules are flexible)
• Witnesses who are beneficiaries or related to beneficiaries
• No evidence the testator understood they were signing a will
4. Fraud or forgery
If the will is forged or the testator was deceived about what they were signing:
• The will is void
• The testator's previous will (or intestacy) applies
5. Ambiguity or uncertainty
If a will is so unclear that its meaning cannot be determined:
• The court may interpret it according to legal principles
• Or declare it void if ambiguity is irreconcilable
Example: A will says "I leave my house to my eldest child" but does not specify which eldest child (oldest of all children, or oldest of a specific group).
6. Breach of fiduciary duty (dependant support)
Under Part 4 of BC's Wills, Estates and Succession Act (WESA), a testator has a duty not to disinherit dependants unfairly. If a testator fails to adequately provide for:
• A spouse
• Children (minor or adult if still dependent)
• Grandchildren in the testator's care
• Anyone else relying on the testator
Those dependants may bring a dependant support claim, even if the will is valid.
Who can challenge a will?
Not everyone has standing to contest a will. Generally, only:
• Beneficiaries in the will
• People who would inherit under a previous will (now revoked)
• People who would inherit under intestacy (if the will is void)
• Spouses or dependants claiming the will unfairly disinherits them
• Creditors of the estate
A stranger with no interest in the estate cannot challenge it.
Timeline for contesting a will
In BC, challenges must generally be raised before or very shortly after probate is granted. Key deadlines:
• Before probate: Challenge the will in the probate application
• After probate (typically within 2 years): Bring a separate court action
• After 2 years: Challenges become harder (the court assumes the will is valid and the delay was unreasonable)
Delays in challenging a will can prejudice your position, so act quickly if you have concerns.
The process of contesting a will
Step 1: Gather evidence
Before going to court, collect:
• Medical records showing the testator's health and mental state
• Statements from family, caregivers, or healthcare providers
• Correspondence showing the testator's wishes
• Evidence of the influencer's behaviour (emails, text messages, witnesses)
• The testator's previous wills
• Documents about the will's execution (witness statements, notarization)
Step 2: Consult a lawyer
Will disputes are complex. Hire a lawyer experienced in estate litigation.
Step 3: Send notice
Before filing in court, give notice to the other parties (the executor, other beneficiaries). Sometimes this prompts settlement negotiations.
Step 4: File in court
If settlement fails, file a claim in BC Supreme Court challenging the will.
Step 5: Discovery and evidence
Both sides exchange documents and evidence. If the case is complex, there may be examinations for discovery (questioning under oath).
Step 6: Expert testimony
In capacity and undue influence cases, expert witnesses (psychiatrists, geriatricians) often testify about the testator's mental state.
Step 7: Settlement or trial
Many will disputes settle once evidence is exchanged. If settlement fails, the case goes to trial before a judge.
Step 8: Judgment
The judge determines whether the will is valid or void. If void, the previous will or intestacy applies.
Defending a will
If you are the executor or a beneficiary defending a will against challenge, you must:
• Prove the will was executed validly
• Demonstrate the testator had capacity
• Refute claims of undue influence
• Present evidence of the testator's true wishes
• Show the influencer's conduct was legitimate (advice, comfort, companionship)
Costs of will contests
Will litigation is expensive:
• Legal fees: $10,000-$50,000+ depending on complexity
• Expert witnesses: $5,000-$15,000+
• Court costs and disbursements: $2,000-$10,000+
The losing party often pays the winner's legal costs.
Ways to prevent will contests
1. Create the will with a lawyer
A lawyer ensures proper execution and can testify about capacity.
2. Get a capacity assessment
If the testator is elderly or ill, have a doctor assess and document capacity.
3. Video the will-making
Some lawyers videotape the testator and witnesses signing the will, creating evidence of capacity and voluntary signing.
4. Communicate your wishes
Tell your family about your will and reasoning, reducing shock and challenges later.
5. Include a no-contest clause
In the will, state that any beneficiary who challenges the will forfeits their inheritance. (This is not always enforceable but can discourage challenges.)
6. Create a separate letter of instruction
Explain your reasoning for gifts and decisions. While not binding, it helps courts understand your intent.
At Sea to Sky Law™
We help clients contest wills and defend wills against challenge. Whether you believe a will is invalid or you are defending against unfounded claims, we can guide you through the court process.
Contact us for a free consultation.
This article is for general information only and does not constitute legal advice.
This article is general information, not legal or tax advice. Meetings are by appointment only, by phone or secure video.