Can I challenge an unfair will?
A will is a valuable legal tool that allows the will-maker to control the distribution of their estate. This document can help to ensure that assets go exactly where the will-maker intends them to go. In addition to the comfort of control, a will aims to decrease the likelihood of discord amongst loved ones.
But what if the will-maker’s wishes were clear, and the distribution of the estate is blatantly unfair?
Unfortunately, such things happen. In a recent example, parents of a wealthy family left 93% of their estate to their two sons. The parents left their four daughters to split the remaining 7% of the estate. The estate was substantial. Its estimated worth at their passing was over $9 million, accumulated through family-owned farms. The family, including the daughters, worked for decades on those farms. The daughters also took on household chores and cared for their parents during the end of their lives.
Yet, due to conservative traditions, the parents chose not to leave the daughters nearly as much as their brothers. When faced with this reality, the daughters challenged the will.
Can children challenge their parents will?
In some cases, the answer is yes. The answer depends on many factors, including local law. In British Columbia, the Wills, Estates and Succession Act gives the court the power to allow a variance to the will. More specifically, it states the court can vary a will to “make adequate provision for proper maintenance and support of the will-maker’s spouse or children … that is just and equitable in the circumstances.”
In the case noted above, the daughters were able to build a successful challenge. The court ultimately agreed with the daughters’ argument and awarded them 60% of the family’s estate. The brothers received the remaining 40%. The daughters noted that their challenge was intended to encourage others in similar situations to fight back if they are beneficiaries to an unfair will.
A surviving spouse, biological children and adopted children of a deceased will-maker all have the same ability to apply to vary an unfair will.
Note that with rare exceptions, any application to vary a will must be started by filing an action in court and serving it on the executor and all parties affected within 180 days from the date that the probate/estate grant is issued.
Is this the only way to challenge an unfair will?
There are other methods. The most common of which are challenging the validity of the will on the following grounds:
- Whether the will-maker was mentally capable of making the will at the time of its execution.
- Whether the will was made under undue influence — i.e. that another individual pressured the will-maker to make the distributions against their wishes.
- Whether the will meets the formal requirements of a valid will under the Wills, Estates and Succession Act. [Note that the court may consider other evidence of the will-maker’s intentions at the time the will was made. If the court is satisfied that the will is a reflection of the will-maker’s intentions to dispose of their estate in a final and conclusive manner, it may uphold the will, even though it may be missing some formal requirements.]
What is the effect of a successful challenge to a will?
In the case of a variation of a will, the court may agree and vary the will to provide just and equitable distribution to a spouse or children.
In the case of a challenge to the validity of a will, the court may find the will invalid and distribute the estate as if there were no will, or may rely upon an earlier, valid will.
What should I do if I think my parent’s or spouse’s will is unfair?
The process of attacking a will can be time consuming, expensive and risky, and therefore it is important to obtain legal advice in a timely manner before taking any specific steps.