1. Does the law say I have to leave my estate to my family?
Generally speaking, you are free to leave your estate to whomever you want. Only a spouse (including a common law spouse) or your children (including adult children) can contest your Will. They must apply to the Supreme Court of British Columbia within six months after the Will has been probated.
2. What is the Wills Variation Act?
In British Columbia, the Wills Variation Act states you must “adequately provide” for your spouse and children. Adequate provision is not defined in the statute. The courts will look at many details surrounding the estate such as the value of your estate, the needs of the spouse and children, gifts to the spouse and children during your lifetime and relationships between spouse and child. There are other factors as well and each case in unique.
3. Who can contest a Will in British Columbia?
Under the Wills Variation Act only spouses and children can contest a Will. This includes common law spouses, same sex partners, and children, whether natural or adopted children.
4. What does it cost to contest a Will?
Estate litigation can be expensive, but we offer an initial free consultation to obtain the facts to enable us to advise you on costs. In certain cases, the client may be given a choice of either paying by the hour, or on the basis of a contingency fee. Some clients prefer contingency fees because this means that no legal fees will be paid unless and until monies are recovered.
5. On what basis can you contest a Will?
The main reason to contest a Will is if you feel you have not been adequately provided for and the Will is not fair. In British Columbia only, spouse and children (including adult children) can contest a Will due to it being unfair. You may also contest a Will based on the view that the person making the Will (the Testator) lacked the necessary testamentary capacity, or the Testator was unduly influenced by someone or they were pressured to make the Will and it was not done by their own free Will.
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