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Should you proceed with challenging a will?

When someone you love dies, you probably will go through a grieving process that includes a heavy amount of sadness and anxiety. During this trying time, if you find out you were left out of your loved one's will, or you believe you aren't receiving your fair share, you may also feel anger, confusion and disappointment. But there are things you may be able to do to rectify the situation.

If your partner passes away and his or her will seems unfair to you, the court – by way of the Wills, Estates and Succession Act – may change the will to provide for you and any children. That law is the same for those who are legally married or those who are common-law spouses who have been living together for at least two years.

Questioning mental capacity

If you have an inkling that your loved one's mental stability was the reason for many of the issues in his or her will that you are now seriously questioning, you reserve the right to challenge the will. The court will look at whether the testator (or the person to whom the will belongs):

  • Knew that he or she was actually fashioning a will
  • Realized that the will should provide for his or her spouse and children, rather than leave them out
  • Understood everything that he or she was passing on by way of the will
  • Knew of the possible ramifications of the will

The court will also want to make sure the testator was not under the undue influence of someone during the making of the will. If after review, the court determines that the testator did not have the mental capacity to write a will, it may declare the will to be invalid. The court may also make the same decision if it finds undue pressure or coercion took place during the creation of the will.

What a court may consider

If you challenge a will, the court will evaluate many factors. Some of which can include:

  • If the deceased had a spouse and dependent children
  • The total worth of assets in the will
  • The financial picture of the person challenging the will
  • The treatment of the deceased by a spouse or children

Launching a challenge to a will in British Columbia has a 180-day time limit from the granting of probate. An executor must receive a claim within 210 days of the granting. Obtaining legal advice may be helpful if you feel your loved one's will isn't treating you fairly. An experienced lawyer may be able to answer any questions regarding the process of challenging a will, and can carefully guide you through this difficult time.

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