January 25th, 2019 by FH&P Lawyers

Dealing with the passing of a family member, especially a parent, is a painful and emotional process. What can make this process even more difficult is finding out that you were not included in their Will, and therefore are not able to collect any inheritance, property or keepsakes.

If you feel that you were unjustly removed or left out of your parent’s Will, you may be wondering if there are any legal actions that you can take to obtain what it rightfully yours. It is not uncommon for a child to contest their parent’s Will. British Columbia’s Wills, Estates & Succession Act states that the testator (the deceased) does have, to an extent, an obligation to support their spouse and children. Because of this, there are instances where a child can successfully challenge a Will — and whether or not they will be successful is very dependent on the situation.

It’s important to consider whether or not contesting the Will is in your best interest. There will be legal fees involved in the often lengthy and emotional process, so ensure that you are ready for the challenge, have a strong case and that the potential inheritance would more than cover the costs before moving forward. The timelines to file a wills variation claim are very short (within 180 days of the filing of the grant of probate). If you choose to challenge the Will, you will want to consult with a professional Wills and Estate Litigation lawyer to build your case as soon as possible.

Here are some situations where you may have a case to contest your parent’s will.

You are a financial dependant of the testator

If you are able to prove that you are a financial dependant of the testator, you may have a case to challenge the Will. This includes minors, those with a disability, or adults who can otherwise prove financial dependency.

You have a ‘moral’ claim to the Estate

In the leading case on Wills variation claims, Tataryn v. Tataryn, (1994) 2 S.C.R. 807, McLachlin J clarified the moral duty of a testator to make proper provision. She wrote that the question of whether a testator has acted judiciously as a parent or spouse should be measured by an objective standard taking into account both the prevailing societal legal and moral norms.

The moral duties of a parent are found in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (p. 822). Provided the size of the Estate permits, some provision for children (including adult independent children) should be made unless the circumstances of the case would negate such an obligation.

You have reason to believe the Will is not valid

There are several reasons why a Will may be considered invalid. If you feel that the Will was created under duress or coercion, that the testator was not of sound mental capacity, or that some fraudulent activity took place, you may have a right to contest it.

While contesting a Will can be a challenging process, it is important that you receive the inheritance rightly owed to you. At FH&P Lawyers, our experienced Wills and Estate Litigation Lawyers understand this emotional journey and are here to assist you every step of the way. Contact FH&P Lawyers for more information about your rights.

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