Who Can Dispute the Validity or Provisions of a Will?

A will may be attacked on the basis that the will-maker had lacked the necessary mental capacity to make the will or the will was the result of fraud, coercion or undue influence from someone else.

Such claims may be made by anyone who would benefit from an earlier will if the contested will is set aside or by someone who would, according to Part 3 of the Will, Estates and Succession Act, [SBC 2009] Ch. 13 (“WESA”), benefit if the deceased had died without a valid will at all.

In addition, s. 60 of the WESA gives the spouse and children of a will-maker the right to claim a variation of the will if it does not make adequate, just and equitable provision for him or her. A will variation claim must be commenced within 180 days of the executor named in the will obtaining a grant of probate of the will.

A dispute as to the validity of a will may be started by filing a caveat to prevent the executor obtaining a grant of probate without first proving the validity of the will in solemn form to the satisfaction of the court. If the court is satisfied as to its validity the will may still be subject to a will variation claim.

In an action for proof of a will in solemn form, the court must be satisfied that it was signed in compliance with the statutory formalities (in writing, signed at the end by the will-maker in the presence of at least 2 witnesses who also signed), and the will-maker knew and approved of the contents of the will when signing and he or she had the necessary mental capacity to make a will at the time.

Although the need for strict compliance with statutory formalities has been relaxed by s. 58 of the WESA, the   need to prove that the will-maker knew and approved the contents of the will or other testamentary document or record and he or she had the necessary mental capacity when making the will remains firmly entrenched in the law.

Will-Making Capacity

The test for will-making capacity is not too onerous. Sufficient mental capacity may exist despite cognitive deterioration. The will-maker may have sufficient mental capacity even when his or her ability to manage other matters is impaired or compromised. Having a less than perfect memory is not sufficient to take away will-making capacity unless it is so great as to leave the person without a mind capable of making a valid will. The law recognizes that cognitive deterioration may still allow for short periods of lucidity when will –making capacity is present.

In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory” which is sufficient to understand the nature and effect of making a will. This includes an understanding as to whether there are persons who would expect to benefit from the will-maker’s estate and the extent of the property of which he or she is disposing. The assessment as to whether the will-maker had possessed the needed mental capacity is a highly individualized question of fact to be determined in all the circumstances. A will-maker cannot be found not to have will-making capacity simply because the will leaves his or her estate in a manner that some people might think unkind.

The person trying to prove the validity of a will may be assisted by a presumption as to the validity of the will. If the will was signed according to the statutory formalities after it was read over by or to a will-maker who appeared to understand the meaning of the will, it may be presumed that the will-maker possessed will-making capacity and knew and approved of the contents of the will when making it.

What if there are Suspicious Circumstances?

The presumption of validity may be rebutted by evidence of well-grounded suspicious circumstances concerning the preparation of the will or tending to call into question the mental capacity of the will-maker at the time or tending to show that the free will of the will-maker had been overborne by acts of coercion or fraud or undue influence.

The standard of proof for establishing suspicious circumstances is a balance of probabilities (more than a 50% chance), which is the standard of proof that applies in civil (non-criminal) litigation.

In order to rebut the presumption of validity, persons attacking the will must demonstrate that there is some evidence which, if accepted, would tend to negate knowledge and approval or will-making capacity. It is important to remember that mere suspicion that something improper may have happened is not sufficient to rebut the presumption of validity; the evidence must raise a specific and focused suspicion. The absence of such evidence will be fatal to a suspicious circumstances argument.

Suspicious circumstances have been found in a wide range of situations which are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include situations where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the will-maker), or where the will favours someone who the will-maker had not previously provided for and does not fall within the class of persons that will-makers usually remember in their wills, namely next of kin.

The validity of a will does not stand or fall on the presence or absence of suspicious circumstances. If suspicious circumstances are established, the presumption of validity fails and the legal burden of proof reverts to the person trying to prove the will to establish the knowledge and approval of the will-maker as well as his or her will-making capacity if the suspicious circumstances had reflected on that capacity.