Top 5 Reasons a Will gets Contested in CourtApr 23 2023
A will is a legal document left by someone who has died setting out what to do with that person’s estate. There are a number of reasons that a will may get contested in court – it could relate to how it was drafted or the circumstances surrounding it. Below we set out 5 of the most common reasons our estate litigators end up in court over a will:
1. Lack of Capacity
The testator (the person who made the will) must be of “sound mind” when the will is created. This means that the testator must understand at a basic level what assets or debts make up their estate and who they may owe a legal or moral obligation to. The testator must have the mental capacity to understand the implications of the terms set out in their will.
Preparing a will through a lawyer helps in that the lawyer will need to discuss the terms of the will with the testator and will keep notes. If the lawyer has a question about capacity, they will want to see an assessment from a physician confirming the testator understands what is necessary to make a will. If there is any question about a loved one’s capacity, it is best for them to see their family physician ahead of preparing a will.
2. Undue Influence
If a testator was unduly influenced by someone who exerted control over them, such as a caregiver or family member, to make certain decisions in their will that may not have been their own, the will may be contested. Spouses and children are often influential in making decisions, including where assets should be allocated. To reach a level of “undue influence” requires a level of influence that can be said to have overruled the desires of the testator. It is a high standard.
The risk of undue influence can also be reduced through the involvement of a lawyer in drafting the will. Even if someone drove the testator to their appointments, the lawyer will typically require that person to leave the room for an extended period of time during which they will confirm instructions with only the testator present.
The language used in the will is critical. If it is unclear or ambiguous, not only may a will be contested by the executor of the estate may actually need to court for direction on how to interpret a sentence in the will. Wills can also include contradictory clauses. An example would be “everything in my deposit box goes to Taylor” and separately that “all of my jewelry goes to Dylan”. What about jewelry that is in the deposit box? Another example would be referencing a division of the estate among “all of my children” but one of the testator’s children died prior to the drafting of the will. Does this mean to benefit that child’s estate or just to divide the testator’s estate among their living children?
Lawyers have specific terminology that is typically used in the will to avoid confusion. They also often advise against including complex wish lists in the will as this can also result in confusion if items are not able to be identified or located. While lawyers aren’t perfect either, they are trained to draft the clauses in wills to be precise so that a future executor is able to carry out the wishes of the testator without the involvement of the court.
4. Improper Execution
There are formal requirements in BC in order for a will to be valid, including that the will is in writing and the testator signs (or it is signed at their direction) in the presence of at least two witnesses who also sign the will. The witnesses cannot be beneficiaries or spouses of beneficiaries under the will and must be at least 19 years old; this is a built-in statutory requirement to guard against allegations of undue influence.
If any of the formalities are missed, then the executor of the will (or administrator if no executor is named) has to go to court for a judge to “cure” the deficiencies in the will. A lawyer will typically ensure all formalities are completed.
The disinheritance of a spouse or child is not necessarily a reason to challenge the validity of a will itself, but it often results in a court challenge. Spouses and children have a right to bring a variation claim, which means applying to court to vary the terms of the will if they allege the terms are not fair.
Our previous blog post entitled Soaring Property Prices and Wills Variation Claims sets out more information about these court challenges. It can be found by clicking on here.
Questions about Contesting a will?
If you have questions about the validity of a loved one’s will or disinheritance, a member of our Estate Litigation Team will be happy to meet with you. Call our office at 604.853.0774 and ask to speak with the Litigation Cold Calls team to set up a consult today.
Need help with estate planning?
If you need assistance with your estate planning or preparing a will, a member of our Will & Estate Planning Team can help. Call our office at 604.853.0774 and ask to speak with an assistant on the Estate Planning team.