Were you expecting an inheritance under a loved one’s Will and found out after death that you were not a named beneficiary in the deceased loved one’s Will OR received less than what you were expecting under that Will?
In such cases, you can challenge the Will in one of two ways:
Section 60 of the Wills, Estates & Succession Act (“WESA”)
If you are related to the deceased by reason of being the deceased’s spouse or child, you can apply under S.60 of WESA to the courts for an order that provision be made out of the deceased’s estate that is just and equitable in the circumstances for your benefit. That being said, you must be either the deceased’s spouse or child to seek funds from the estate under WESA. Grandchildren, nieces, nephews and other relations have no standing to apply for a share of the estate under WESA.
Undue Influence
Where you suspect a loved one was under undue influence to make a Will that excluded you, you can apply to court to challenge the validity of the Will and in the event that such challenge is successful then the Will shall be set aside and if an earlier Will exists then its provisions will govern the distribution of the deceased’s assets or if no such Will exists then the deceased will be found to have died without an Will and the estate will be distributed in accordance with the rules as set out in WESA.
In order to convince a Court to make a finding that the deceased made a Will under undue influence, the onus will be on you to establish the Will was made under suspicious circumstances where the Will is properly executed. A court will look to the following factors to determine if suspicious circumstances existed at the time of the signing of the Will:
• Were one or more of the named beneficiaries in a position to exercise undue influence over the will-maker such as providing care-giving or running daily chores for the will-maker;
• Were one or more of the beneficiaries facilitating the making of the Will – such as did the beneficiaries drive the will maker to the appointment or discuss the matter with the drafting Notary or Lawyer;
• Timing of the will maker’s decision to make a will or new will in relation to the physical or mental deterioration of the will-maker;
• Were one or more of the named beneficiaries a relatively recent acquaintance of the will-maker or re-entered the will-maker’s life after a long absence;
• Changes to the Will made towards the end of the will-maker’s life or during periods of ill-health; and
• The will-maker’s isolation from family members and/or friends.
This list is by no means exhaustive as other events surrounding the making of a Will may constitute suspicious circumstances. Once you have established the existence of suspicious circumstances surrounding the making of the Will, the onus falls upon those attempting to uphold the Will to prove the will-maker had capacity when signing the Will.
If you or a loved one has been excluded from an estate of a relative or close friend by a will made in what you feel are suspicious circumstances, timely legal advice and representation can be had by contacting Vancouver/Burnaby inheritance and estate litigation law lawyer Andrew Rebane at Resolutions Law Corporation, [email protected] or 778-372-7107
