In Wills & Estates

Families often struggle with inheritance issues after a loved one dies. With the expected transfer of a staggering $1 trillion in wealth from Canadian baby boomers to their GenX and millennial successors between 2023 and 2026, the stakes are higher than ever. 

Presumably the largest generational wealth transfer in Canadian history, will issues are also most likely to arise. These issues might be caused by confusing will language, perceived unequal asset distribution, or questions about the deceased’s mental state when the will was written. 

Those concerned must understand these arguments since emotional and financial stakes are high. In this difficult family situation, a last will attorney is essential. Estates lawyers specialize in wills and estates and provide crucial assistance and support to honour the burial wishes of the will-maker and protect all parties’ rights. 

The Role of Parents and Their Motivations

Numerous studies support the idea that parents should equitably distribute their estate assets to their adult and minor children. However, unequal bequests are widespread and seen as favouritism. Unequal bequests may reward a child who provides substantial care or addresses siblings’ financial needs.

Legitimate Motivations for Unequal Bequests

  • Caregiving: The caregiver-child may have sacrificed employment possibilities, personal time, and financial security to care for the aging parent; a greater bequest may be a reward.
  • Financial Need: Parents may give financially disadvantaged children more. Children with medical issues or unemployment may receive a bigger portion to stabilize their circumstances.
  • Recognition of Work: Parents may reward a child who has helped the family business or been more involved.
  • Personal Connections: Parental distance from certain children may cause them to inherit less, which may indicate past fights or emotional distance.


Legal Rights in Will Contests

Probate disputes or legal issues arise when bequests are not evenly distributed amongst beneficiaries. Will contests usually highlight possible successors’ legal rights. Understanding these rights is essential for handling inheritance disputes.

Testamentary Freedom vs. Legal Constraints

Fundamental to common law systems is the concept of testamentary freedom, which states that people should be able to divide their wealth any way they think is proper. Some circumstances can threaten this freedom:

Undue Influence and Lack of Capacity

  • Undue Influence: A legal will is challengable if the testator isn’t in his sound mind or was influenced to make decisions he would not have made independently. To do this, you must show that the effect was so significant that it mooted the testator’s free choice.
  • Lack of Capacity: Last wills might be challenged if the testator cannot understand the decisions while writing them. Usually, it requires medical proof of cognitive impairment.

Legal Mechanisms for Contesting Wills

  • Undue Influence and Capacity: Courts carefully consider will-making conditions. This involves examining the testator’s acquaintances for coercion or manipulation.
  • Acceptable Financial Provision: A will can be challenged in Canada if it fails to provide for particular members of the family or dependents. Each province has its laws on this. This allows the courts to restructure the estate plan for fair support.

Legal Principles Guiding Will Contests

Principle Description Examples Across Canada
Fair Treatment of Family Members Given the testator’s wishes and cultural expectations of family assistance and equality, courts ensure each family member receives a fair share of the inheritance.
  • British Columbia: If wills fail to provide for the deceased’s spouse and children, the Wills, Estates and Succession Act (WESA) allows contestation.
  • Alberta: Without a reasonable will, dependants can apply for maintenance and support under the Family Relief Act.
Balancing Testamentary Freedom and Equity Judges and estate lawyers must balance satisfying the testator’s desires with avoiding undue hardship or inequity among family members.
  • Ontario: Dependants can claim support if the will is inadequate under the Succession Law Reform Act (SLRA), which balances the testator’s independence with fairness.
  • Manitoba: The court might mandate maintenance under the Dependents Relief Act if dependants are unsupported.
Public Policy and Moral Duty Courts may consider the testator’s moral obligation to support close relatives, which reflects society’s values.
  • Quebec: The Quebec Civil Code supports spouses and children in fulfilling moral and legal obligations.
  • New Brunswick: The Provision for Dependants Act lets dependants challenge a will that fails to support them.
Assessment of Fairness and Equity Courts evaluate the will’s fairness and interfere if the estate plan distribution is unfair.
  • Prince Edward Island: Insufficiently maintained dependants can seek fair provision under the Dependants of a Deceased Person Relief Act.

Alternative Dispute Resolution (ADR) in Inheritance Disputes

Due to the financial and emotional costs of litigation, mediation and other forms of alternative dispute resolution (ADR) can help settle inheritance or complex estate disputes.

  • Confidentiality. Mediation allows parties to discuss their difficulties privately without court scrutiny.
  • Emotional Recovery. Mediation can help siblings understand each other and mend rifts by addressing emotional difficulties.
  • Cost-Effectiveness. Mediation reduces estate and heir costs faster and cheaper than litigation.

Legal Rights of Heirs and Beneficiaries

Statutory Rights

Spousal Elective Share

The Wills, Estates, and Succession Act (WESA) in British Columbia allows a surviving spouse to divide family property like in a divorce. This assures the spouse receives an equitable estate split regardless of the valid will.

Rights of Children (Pretermitted Heirs)

WESA protects pretermitted heirs, children accidentally left out of a valid will. If a child was born or adopted after the will was prepared, or if the will was written believing the child was dead, the child may be entitled to a share of the inheritance as if the deceased had died intestate.

Who is Authorized To Contest a Will?

Last will and testament can only be challenged by someone who has standing, including:

  • Legal spouses and common-law partners.
  • Biological and adopted children.
  • People who were financially dependent on the deceased.
  • Beneficiaries named in the will.
  • Heirs at law, or individuals who would inherit under intestacy laws if the will were deemed invalid.

Legal Interest Required

For a person to have standing, they need a legitimate stake in the estate. They must show that the will directly affects them. A child can contest a will if it disinherits them or gives them less than intestacy laws would.

How to Challenge a Will

Initial Steps

  1. Filing a Claim in Probate Court. A formal claim is filed with the will’s probate court. Claims for will contestation must include testamentary ability, undue influence, and failure to provide for dependants.
  2. Statute of Limitations. In British Columbia, claims must be made within 180 days of probate or administration of lawyer-drafted wills. You must meet these deadlines for the court to consider your claim. Provincial laws may vary, so it’s advisable to consult an estate lawyer in your locality

Discovery Phase

  1. Evidence Gathering. At this phase, the parties gather legal documents to support their claims. Legally valid financial paperwork, correspondence, and witness statements can prove the will’s legitimacy.

Mediation and Settlement

  1. Dispute Resolution Alternatives. Parties may try mediation or other ADR before trial. This approach involves a neutral third person facilitating negotiations to reach a compromise.
  2. Out-of-court Settlement
  • Pros: Settling can save time, money, and stress and resolve the dispute amicably.
  • Cons: Settlements are compromises and may not reflect what either party would win in court.

Going To Trial

  1. Court Proceedings. The trial follows mediation failure. Both sides present their arguments and pieces of evidence to a judge (or jury, depending on jurisdiction).
  2. Burden of Proof. The party contesting the will usually has to prove it. They must prove the will is void due to undue influence, testamentary capacity, or execution.
  3. Possible Results. The court may uphold, amend, or invalidate the will. Invalidated wills or legitimate wills may distribute the estate. The court may require reasonable financial provision for dependants if the will fails.

Receive Fair Inheritance With Sidhu Legal

Understanding the ins and outs of the law is essential for navigating complex estates and inheritance disputes. Legal representation by a good estate lawyer protects your rights and assures proper legal process. Estate lawyers can clarify, protect, and help you reach a fair resolution.

If you require legal advice, consult estate lawyers from Sidhu Legal, which specializes in estate law and can provide you with personalized, sound legal advice and a representation agreement. Whether you need assistance during mediation or settlement processes or help you make estate planning wills, reliable estate lawyers can ensure your estate assets are distributed properly for your family’s future.


Frequently Asked Questions

Can I only contest a specific provision in the will and not the whole thing?

Yes, a court can invalidate unjust, influenced, or poorly executed will portions while upholding the rest. The remaining provisions of the legal will can be preserved and enforced.

To avoid this, estate owners must seek individualized legal advice before finalizing their own will as a legal document. While online wills offer convenience, they may not address specific legal nuances or potential probate fees.

What happens if there is a no-contest clause in the will?

A will’s no-contest clause (in terrorem clause) discourages beneficiaries from questioning its legality. It usually indicates that if a beneficiary loses a will challenge, they will lose their inheritance. No-contest clauses are permissible in British Columbia, but their enforceability is limited. 

Is it possible to contest a will after probate has been granted?

Yes, a will can still be challenged after the probate process, but within the required timeframe. In British Columbia, claims must be submitted no later than 180 days after the administration or probate is granted.

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