When a person passes away, their will serves as a critical guide for property distribution and defining their legacy. It is a highly personal and powerful document, and the courts treat it as such. Therefore, setting it aside is not something they do lightly.
However, wills are subject to challenge under certain circumstances.
In British Columbia, the courts allow spouses and children to contest a will on the basis of unfairness. If the decedent left someone out of a will, he or she could dispute it in court. If a parent leaves a disproportionate gift to male heirs while failing to make equal consideration for female heirs, which was this situation in this case, the slighted parties could challenge the will.
While a person can still disinherit someone or leave unequal gifts to beneficiaries, there must be valid reasons for doing so.
Lack of mental capacity
Cognitive functions can deteriorate before a person passes away. They may not be capable of making decisions for themselves, and they could experience memory loss. As such, it is crucial to ensure a person is of sound mind when they create or change any legal documents.
Parties who believe a person lacked mental capacity when he or she drafted or revised a will may have grounds to contest its validity in court.
As a person’s health declines and their mental capabilities suffer, he or she could become a target for manipulation and undue influence by other parties. These parties use their position to compromise the target’s independent will.
If a will appears to serve an influencing party’s needs rather than the person creating the will, undue influence could be a reason to contest that document.
Knowing your options when contesting a will
Again, the courts are not cavalier when setting aside a person’s will. They require evidence that a will is unfair, invalid or does not truly reflect the testator’s wishes.
As such, merely disagreeing with the terms may not warrant a formal challenge in court.
If you believe there is a basis for contesting a person’s will, legal guidance to help you navigate the process can be critical. There are many rules for who can challenge the will and how long they have to submit an application. Oversights and missteps can jeopardize your claim and create additional problems that can be difficult to resolve.