Estate Litigation

Curing Defective Wills

A will-maker must observe certain formalities prescribed by law in order for his or her will to be valid.  A valid will must be in writing, signed by the will-maker, and properly witnessed. It must also be made by a person having sufficient mental capacity to do so. Historically, the common law has been strict to uphold these requirements. Wills failing to observe these formalities were declared invalid by the court and in the process, the testamentary intentions of the will-maker were ignored. This led to unjust results, both for the will-maker and for any intended beneficiaries.

With the introduction of the Wills, Estate and Succession Act (WESA) in 2014, British Columbia sought to relieve against the consequences of wills that fail to comply with the formalities prescribed by law. In cases where a document reflects the testamentary intentions of a deceased person, the court may now declare that document to be fully effective as though it were a valid will.

Applications to cure a defective will are incredibly fact sensitive. The court must look at a number of factors to determine whether the will represents the “fixed and final intentions” of the will-maker. Some of the factors include the following:

• The presence of the deceased’s signature;

• The deceased’s handwriting;

• Witness signatures;

• Revocation of previous wills;

• Funeral arrangements;

• Specific bequests; and

• The title of the document (e.g. “Last Will and Testament”)

Gathering the necessary evidence to support a claim to cure a defective will can be a complicated process. Our estate litigation lawyers at Zacharias Vickers have experience bringing forward these types of applications and are here to provide you with a knowledgeable and objective opinion with respect to your claim.

Wills Variation

A will-maker has both a moral and legal duty to give fair consideration to their spouse and children when preparing a will. Unfortunately, this duty is not always followed and as a consequence, it is possible for a surviving spouse or child to be effectively cut out of a loved one’s will.

In British Columbia, the Court is given broad discretion under the Wills, Estate and Succession Act (WESA) to vary a will in cases where a spouse or child of a will-maker has not been adequately supported within a will, or has been disinherited completely. In such a case, the Court can vary the provisions in a will in a manner that it believes to be just and equitable.

The question of whether a will-maker has made fair consideration in his or her will for the proper maintenance and support of a spouse or child depends on the facts of each circumstance. The court can take into account a number of factors when deciding to vary a will including, but not limited to, the following:

• The size of the will-maker’s estate;

• The nature of the will-maker’s relationship with the spouse or child;

• The actual needs of the spouse or child;

• The contributions of the spouse or child to the will-maker’s life; and

• The will-maker’s intentions and reasons for making his or her will.

The WESA provides a very short window of opportunity for a wills variation claim to be made. Wills Variation claims must be brought within 180 days of the will being granted probate by the Court.

If you believe you have been unfairly disinherited, it is important to seek legal advice from one of our estate litigation lawyers as soon as possible. Failure to contact us in time may cause your limitation period to lapse and seriously jeopardize, or even bar, your claim.