If you are a beneficiary or an executor under a Will, you may have to deal with a Will that is being challenged or, if you are a beneficiary or a potential beneficiary, you may be in a position to challenge a Will. A beneficiary or a potential beneficiary may challenge a Will where he or she claims that the Will is invalid. There are a number of factors that must be met in order for a Will to be valid, the absence of which will leave a Will vulnerable to a challenge.

Legal Requirements

A Will may be invalid if the will-maker did not satisfy the formal legal requirements. For example, in order for a Will to be valid, generally, two people must witness the will-maker’s signature. However, in certain cases, even if a Will does not meet the formal requirements, a court may determine that the Will is still valid.

Mental Capacity

A person may also challenge a Will on the grounds that it is invalid if, when the will-maker made the Will, he or she did not have the required mental capacity to make a Will. In order to have the required mental capacity, the will-maker must understand what he or she is doing and must not be suffering from any disorder or illness that affects mental capacity. For example, a person will not have the required mental capacity to make a Will if he or she is suffering from dementia when he or she makes the Will.

Knowledge and Approval of the Will’s Contents

Although a person may have the mental capacity to make a Will, the Will may still fail to reflect the will-maker’s wishes. A will-maker must understand what the Will is intending to do such that it reflects his or her true intentions. Additionally, a Will may not meet the requirement that the will-maker knows and approves of the contents of a Will if someone else improperly influenced the will-maker. For example, a person who threatens to stop taking care of a person unless the will-maker leaves him or her something in the Will has improperly influenced the will-maker.

What Happens if the Will is Successfully Challenged?

If a court finds a Will to be invalid, the court may look to a previous Will to determine how the deceased’s estate will be distributed. If there is no previous Will that is valid, the estate will be distributed according to the law of intestacy. Intestacy means that the deceased’s family members will inherit from the deceased based on the order set out in the British Columbia Wills, Estates and Succession Act.

If you need legal advice on this subject or any other law related inquiry please contact us.