The Five W’s of Wills Variation in BC
Wills Variation and Estate Planning & Litigation forms an important part of the practice of the Kushner Law Group here in Vancouver. There are strict statutory time lines that must be observed and only certain people can legally contest the will of a deceased relative. Although the law in this area is rapidly evolving with the introduction of the new Wills, Estates and Succession Act (“WESA”), some of the key principles that have evolved through the common law remain in force.
The 5 W’s of Wills Variation in Vancouver BC
WHO can challenge a will?
Under (“WESA”), only spouses and children of the Deceased can challenge or contest a will. Adult children and common-law spouses are both included in this category. Nieces, nephews, cousins and best friends do not have a statutory right to challenge a will
WHAT can be challenged?
Wills are legally binding documents that set out the intentions of person with respect to their estate. The validity of certain gifts or dispositions of property are subject to challenges as is the distribution of the residue of the will-maker’s estate. The residue (everything that is not specifically disposed of) often forms the largest portion of the estate and the breakdown given to each of the beneficiaries can be challenged in court.
WHEN should the lawsuit be commence?
Lawsuits that seek to vary a will must be commenced within 180 days of the date that the representation grant is issued in British Columbia. This is different from other limitation periods for other types of matters and it is important that if you believe that you may have a reason to contest a will that you consult a lawyer promptly to ensure no limitation dates are missed.
WHY should someone challenge a will?
Wills can be challenged for a number of reasons but typically the core of dispute deals with issues of fairness. Courts can vary wills to ensure that the dispositions made are adequate, just and fair and will look at both legal and moral obligations. The relationship between the will-maker and the person contesting a will can be examined by the Court along with other factors including why someone may have been left out of will or given a substantially smaller share than they would have expected.
WHERE should you begin?
If you have a question about challenging a will and believe that you might need to commence a lawsuit, the best place to start is by meeting with a local Vancouver lawyer. Many cases can be resolved by negotiation and sometimes lawyers will take wills variation litigation on a contingency basis meaning you may not have to pay anything up front.