A will is a document which sets out how the testator’s assets are to be distributed on their death. It is a legal document which, if properly drafted and executed, is capable of transferring all kinds of property, establishing trusts and changing beneficiaries’ lives for the better. Wills can also be instruments of great pain and hurt. Children may be disinherited or one child may be favored over another. British Columbians have the benefit of protections afforded by the Wills, Estate and Succession Act which permits certain individuals to contest a will where it can be shown the deceased failed to make adequate provision for them.

Who is able to apply to vary a will?

A will my be contested (challenged) on the death of the testator by either a spouse or a child of the deceased. The term ‘spouse’ had evolved in law such that it is possible for an individual to die leaving more than one spouse eligible to challenge the will. Any biological (or legally adopted) child of the deceased is also able to make a claim should they believe inadequate assets have been left to them under the terms of the will.

What are my chances of contesting a will and winning?

These types of claims are highly fact dependent – details matter. There is also a tight time frame (or limitation period) within which a claim to vary a will must be started. Unless there is clear evidence of a potential claimant being misled by the executor, this timeline is strictly followed by the court.

Statistically, of those wills variation claims that end up in court, there are more wills successfully varied than upheld. The vast majority of claims however are settled out of court by mediation and/or negotiation.