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A disputed will is emotional and requires guidance from the experienced estate litigation lawyers at MacLean Law.

  • How do I contest an unfair will?

  • Who can apply to vary a will?

  • How does the court determine adequate provision for the will maker’s spouse and children?

  • Does Wills, Estates & Succession Act (WESA ) cover common-law and same sex relationships?

  • Are there limitation dates when contesting a will?

  • Is the entire estate covered under the WESA Act?

  • If the marriage is failing or one partner is ill, what steps should I do to protect myself?

How do I contest an unfair will?

If you have been left out of a Will or feel you have been under-provided for, you can apply to the Supreme Court of British Columbia to vary a Will.

Working with a qualified Estate Litigation attorney like one of MacLean Family Law’s senior Unfair Disputed Will Variation lawyers can help you establish that the requirement of “adequate provision” and “proper maintenance and support” was not met and help ensure you receive all that you deserve.

Who can apply to vary a will?

Only the spouse (married or common-law) and children (biological and adopted children) of the will-maker may apply to vary a will. Ex-spouses, step-children, other relatives and friends to not have the right to apply to vary or dispute a will.

How does the court determine adequate provision for the will maker’s spouse and children?

The courts will consider the following factors to determine adequate provision for proper maintenance and support of a will-maker’s spouse and children:

  • Actual need, which varies with age and dependency;
  • Justifiable expectation based upon a dependency upon the will-maker or an actual contribution made by the claimant to the will-maker’s estate;
  • Will-maker’s intention and reasons for making his or her will; and
  • The size of the will-maker’s estate.

Does Wills, Estates & Succession Act (WESA ) cover common-law and same sex relationships?

Yes. A spouse can be of the same or opposite sex in a common-law relationship, which is defined as a marriage-like relationship for at least two years prior to the death.

Are there limitation dates when contesting a will?

As per section 61 of the Wills and Estates Succession Act, the limitation period for commencing an action to vary a will is 180 days from the grant of probate. The “grant of probate” is a legal process which once completed enables the Executor to collect and distribute the deceased person’s assets.

This is a very strict time limitation period and it requires notice to be provided to the executor within 30 days of the expiry of this 180 day period. If you feel you have been treated unfairly, do not delay.

Is the entire estate covered under the WESA Act?

What is covered under the WESA Act:

  • All real property (land and buildings) in BC, regardless of where the testator lived prior to his or her death;
  • All personal property such as cash, securities, moveable assets, wherever located only if the testator lived in BC and intended to make BC his or her permanent home;
  • Only assets that form the Estate are subject to the Act.

What is not covered:

  • An insurance policy in a specific beneficiary’s name will not be included in the estate;
  • Certain types of pension benefits;
  • Jointly owned property where the other owner is not a spouse or a child is dealt with on a case by case basis due to the unique circumstances.

The qualified lawyers at MacLean Law are available to outline some of the most important principles that apply and provide the advice you need to ensure that your assets are divided in the manner you intend.

If the marriage is failing or one partner is ill, what steps should I do to protect myself?

If your marriage is breaking down, knowing the rules of how a spousal claim is made under either family law or by way of a WESA estate litigation claim is critical, and the rules are confusing.

You need to get immediate advice if your marriage or marriage-like relationship is unstable, particularly if you or your spouse have serious health challenges. Failing to do so may prevent you from obtaining a fair estate litigation settlement for a disputed will. Whether spouses are separated and whether there are any agreements or orders for spousal support makes a huge difference.

If you have concerns over a loved one’s ability to do what’s best with respect to their financial and health decisions, you can explore a number of ways to put protection in place. These decisions are emotional, serious and require proper guidance from the experienced estate litigation lawyers at MacLean Family Law.

"

They did a great job on my file, it was a pleasant experience. I highly recommend MacLean Law, and thank you Lorne and Sophia.

"

MacLean Law Client