Are you dealing with a dispute over the will of a deceased parent or spouse? Do you have questions about the fairness of the will?
Validity of the Will
Did the deceased meet the basic legal requirements for creating a valid will? A will must be in writing and signed by the will-maker and two witnesses all present at the same time. Under the Wills, Estates and Succession Act in BC, a court can now order that a will is effective despite certain errors or omissions.
If a will is found to be invalid, the estate may be distributed using the rules of intestacy, which state the order in which spouses, descendants, and relatives receive a share of the estate. If you have questions about the validity of a will, contact me.
Do you believe that the deceased may have been pressured or unduly influenced to make a will or to alter an existing will? You may be able to challenge the will or a provision of the will in court on the basis of undue influence. Contact me.
Variation of the Will
Does the will of the deceased make adequate provision for the spouse and/or children left behind?
Under the Wills, Estates and Succession Act in BC, if a will-maker dies leaving a will that does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the spouse or child can apply to have the court vary the will.
In varying a will, a court will consider the legal obligations and moral obligations of the will-maker. Legal obligations are those which the law would impose on a person during his or her life (ie. spousal support or child support). Moral obligations have been said to be “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to community standards”. Generally, a will-maker will owe both a legal and moral obligation to their spouse and dependent children. In addition, a will-maker may owe a moral obligation to adult independent children. A will-maker can exclude an adult independent child from the will, but they must have valid and rational reasons for the exclusion.
If you are thinking of challenging a will, or need to defend a will against a challenge from someone else, contact me.