Making Your BC Will Harder to Challenge

If you expect someone in your family to be unhappy with your will, it is natural to ask how to make it "contest-proof". In British Columbia there is no such thing: spouses and children have statutory rights, and anyone with an interest can ask a court to look at whether a will is valid.

What you can do is reduce the risk. This article looks at the usual grounds for a challenge from the will-maker's side, and the practical steps that make each one harder to bring.

Know the grounds a challenger would use

Most challenges to a BC will rely on one or more of these:

• Formal validity: the will was not signed and witnessed as the Wills, Estates and Succession Act (WESA) requires.
• Capacity: the will-maker lacked the mental capacity to make a will.
• Undue influence: someone in a position of influence pressured the will-maker.
• Wills variation: the will does not adequately provide for a spouse or child, under section 60 of WESA.

If you are a family member thinking about challenging a will, our article on the 180-day window to contest a will is the better starting point. The steps below are for the person making the will.

Get the formalities right

Section 37 of WESA requires a will to be in writing, signed at its end by the will-maker in the presence of two or more witnesses present at the same time, and signed by those witnesses in the will-maker's presence. Witnesses must be 19 or older (section 40). Under section 43, a gift to a witness or a witness's spouse is void unless a court orders otherwise, so beneficiaries and their spouses should not act as witnesses.

Section 58 lets a court rescue a document that does not meet these rules, but only after an application and evidence about your intentions. A will signed properly the first time avoids giving anyone that opening. See making a valid will in BC for the signing steps.

Create a record of capacity

Capacity is judged at the time the will is made. If your health, age or memory could later be questioned, consider:

• having a lawyer take your instructions and make detailed notes of the meeting, including your understanding of your property, your family and the effect of the will;
• asking your doctor for an assessment close to the signing date where there is a real concern; and
• signing promptly after giving instructions, rather than months later.

Contemporaneous evidence from independent professionals is often more persuasive than recollections offered years later.

Keep the process independent

Undue influence claims often focus on who was involved in making the will. Section 52 of WESA matters here: if a challenger shows that a person was in a position where the potential for dependence or domination of the will-maker was present, the burden shifts to the person defending the will to show that undue influence was not used.

To reduce that risk:

• meet your lawyer alone, without beneficiaries in the room;
• arrange your own appointments and, where possible, your own transport;
• use an interpreter who is not a family member or beneficiary if you need one; and
• avoid having a beneficiary draft, deliver or collect the will.

Explain unequal treatment in writing

If you plan to leave a spouse or child less than they might expect, think carefully about section 60. The court can order the provision it considers adequate, just and equitable for a spouse or child, whatever the will says, and a claim must be started within 180 days of the grant (section 61).

You cannot remove that right, but you can help the court understand your decision. Section 62 allows the court to accept evidence of your reasons for the gifts you made, or for not making adequate provision, including a written statement signed by you. The court weighs that statement in light of all the circumstances, so reasons that are accurate, specific and fair carry more weight than general complaints. A lawyer can help you record them in a way that is useful rather than inflammatory.

Blended families raise these issues often; see estate planning for blended families in BC.

Be cautious about no-contest clauses

Some people ask for a clause that takes away a gift if the beneficiary challenges the will. These clauses are not a substitute for the steps above. Whether one would be enforced depends on its wording and on the kind of claim being made, and it does nothing to fix a will that is poorly made or leaves a spouse or child without adequate provision. Ask before relying on one.

Keep the will current

Old wills that no longer reflect your family invite disputes. Review your will after marriage, separation, a new relationship, a birth or death in the family, or a significant change in your assets. Our article on when to update your will in BC lists the common triggers.

Expecting objections to your will? Plan for them now

Our wills and estate planning lawyers can take your instructions independently, document capacity and reasons where appropriate, and supervise the signing of your will.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.