The Wills, Estates and Succession Act (WESA) permits a child or spouse of a deceased to see redistribution of the testator’s estate if it can be established that ‘adequate provision’ has not been make for the ‘proper maintenance and support’ of the claimant.
Factors that may be considered by courts in determining whether ‘adequate provision’ has been made include, but are not limited to:
- The station in life of the child or spouse
- The financial need of the child or spouse
- A consideration of the future needs of the child or spouse
- Whether there are restrictive conditions in the will of the deceased that preclude adequate provision for the child or spouse
- Whether the child or spouse is being maintained by the state
Note that the courts have confirmed that a testator can disinherit a child for good cause, particularly when a WESA memorandum is prepared along with the will setting out the testator’s reasons.
Also note that in addition to legally married persons, ‘spouse’ also includes a person who is living with another person in a marriage-like relationship, including persons of the same gender, and has lived in that relationship for at least 2 years.
A person ceases to be a spouse, in the case of legally married persons, when they live separate and apart for at least 2 years, and one or both persons have the intention formed before or during separation to live separate and apart permanently, or, an event occurs that causes an interest to arise in family property under the Family Law Act of BC. A person ceases to be a spouse, in the case of a marriage-like relationship, when one or both persons terminate the relationship.
Whether the reasons constitute good cause is a matter that may require legal consultation with a practicing lawyer.
The court action to challenge a will under the Wills, Estates and Succession Act must be commenced within 180 days from the date of the grant of probate.
WESA does not apply when a person dies without leaving a will.
Wills and estates of Status-Indians are governed by the Indian Act.
UNDUE INFLUENCE
A will can be challenged under the doctrine of undue influence, where it is alleged that some or all of the will was made due to force, fraud, fear, or undue influence on the will-maker by another person.
Under the Wills, Estates and Succession Act, when a relationship existed between the will-maker and another person, often a caregiver, “where the potential for dependence or domination of the will-maker was present”, a gift made to that person is now presumed invalid. The would-be beneficiary has the burden of disproving he or she exercised undue influence over the will-maker.
CHALLENGING THE WILL
There are two common ways of challenging the validity of a will, through the claim that the testator lacked testamentary capacity when the will was made, and through the claim that the will was made under suspicious circumstances.
Lack of testamentary capacity: a claimant can state that there was not sufficient testamentary capacity at the time the will was entered into.
- Testamentary capacity can be summarized as properly understanding the act and implications of making the will, free of mental disorder and under genuine free choice.
- If the will is rational on its face, it is presumed that the testator was capable at the time when it was made. It must be proved that there was incapacity on the balance of probabilities – a civil standard of proof.
- An individual that is under 16 years old can only make a valid will if he or she is on active service in the armed forces
Suspicious circumstances: where a will is prepared under circumstances that raise a well grounded suspicion that it does not express the mind of the testator.
- The propounders of the will face a burden of proof to remove the suspicion by proving knowledge, approval and testamentary capacity.
