Today, our team of experienced Challenging BC Will Validity Lawyers answer the question: How do I challenge the validity of a BC Will?
In today’s blog Rana Yavari of our team of Challenging BC Will Validity Lawyers summarizes Everything You Need To Know About BC Will Validity. BC Wills govern how property and income is divided on the death of a Will maker. The majority of BC Wills fairly and properly provide for a deceased’s love ones. But what happens when a Will is unfair or worse still was not properly made? MacLean Estate Litigation Challenging BC Will Validity Lawyers get involved in these cases to ensure justice is done. In some cases defective Wills can be fixed but in others the Will should not be given any legal effect. MacLean Law has 6 offices across BC and in Calgary Alberta to help you with your Will dispute needs.
Challenging BC Will Validity Lawyers 1-877-602-9900
Challenging the Validity of a Will
The validity of a will may be challenged by either the executor of the will or a person interested in obtaining a declaration that the will is invalid. There are four common grounds on which a will may be invalid:
(a) invalid execution;
(b) lack of knowledge and approval;
(c) lack of testamentary capacity; and
(d) undue influence.
For free general information on Will disputes click here. Howver, there is no replacement for meeting with a skilled Will dispute lawyer.
Challenging BC Will Validity Lawyers Explain Invalid Execution
To challenge the validity of a will, the propounder has the burden of showing that the will was validly executed according to the statutory formalities, that the will-maker had the requisite knowledge and approval of the contents of the will, and had testamentary capacity at the relevant times. The propounder is assisted by the rebuttable presumption that, upon proof that the will was duly executed after having been read over to or by the will-maker who appeared to understand it, then it will be presumed that the will-maker had testamentary capacity and knew and approved the contents. In those circumstances, the onus shifts to the challenger of the will to show some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. If the challenger provides evidence that gives rise to a specific and focused suspicion, or “suspicious circumstances” regarding the preparation of the will, then the onus shifts back to the propounder to prove testamentary capacity and knowledge and approval on a balance of probabilities.
Challenging BC Will Validity Lawyers Explain-Formal Validity
In BC, Wills, Estates and Succession Act (“WESA”) has established that a will is formally valid if the following requirements are met:
(a) the will must be in writing;
(b) the will must be signed by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time; and
(c) the will must be signed by 2 or more of the witnesses in the presence of the will-maker.
Challenging BC Will Validity Lawyers Explain-Lack of Testamentary Capacity
Litigation about testamentary capacity typically revolves around charges that the testator lacked the mental capacity to make a will. Those who challenge the validly executed will are required to demonstrate that the testator did not understand the consequence of his/her conduct when the will was executed.
The court in Laszlo v. Lawton, 2013 BCSC 305 discussed the importance of timing. The first relevant time that testators must have testamentary capacity is when they give will instructions and the second is when the will is executed.
[189] In recognition of the fact that faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required at these pivotal times. For example, the will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions
[190] The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time.
Challenging BC Will Validity Lawyers Explain-Undue Influence
To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may also arise from other relationships.
In Leung v. Chang, 2013 BCSC 976 Dardi J. described the degree of influence that is required to prove a claim of undue influence as follows:
[35] In order to invalidate a will on the grounds of undue influence, the asserting party must prove that the influence exerted against the will-maker amounted to coercion, such that the will did not reflect the true intentions of a free will-maker and was not the product of the will-maker’s own act. The undue influence must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency. It is well-established on the authorities that if the will-maker remains able to act freely, the exercise of significant advice or persuasion on the will-maker or an attempt to appeal to the will-maker or the mere desire of the will-maker to gratify the wishes of another, will not amount to undue influence.
So there you go, now you know Everything You Need To Know About BC Will Validity.
Call our Challenging BC Will Validity Lawyers promptly as there are strict time limits to challenge a Will you believe is invalid or unfair.
Call our Toll free number at 1-877-602-9900 to meet with us in Vancouver, Surrey, Kelowna, Richmond and Fort St John, BC.
