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Wills Variation

Estate Litigation: Who Can Contest a Will

By Candace Cho

Not everyone can contest a will; for example, I cannot initiate a claim to vary my uncle’s will if he didn’t leave me a share of his estate. However, as a niece/nephew, I may be able to challenge the validity of my uncle’s will if I would be a beneficiary in the event my uncle’s will is found invalid. Such was the case in Elder Estate v Bradshaw, 2015 BCSC 1266.

Why can you contest a will?

As such, who can contest a will depends on, to some extent, why you are contesting the will. For example, a claim to vary the terms of a will under section 60 of Wills, Estates, and Succession (“WESA”) can only be made by the deceased’s spouse or children.

For more information on how to vary the terms of a will under section 60 of WESA, see the following articles:

Who is the deceased’s ‘spouse’?

“Spouse” is defined under section 2 of WESA:

2  (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a) they were married to each other, or

(b) they had lived with each other in a marriage-like relationship for at least 2 years.

Spouses who had “lived with each other in a marriage-like relationship for at least 2 years”

It may be difficult to determine whether two individuals have lived with each other in a marriage-like relationship for at least 2 years (in other words, whether they are ‘common-law spouses’) for the purposes of wills variation. Keep in mind that whether two individuals are ‘spouses’ is a legal test. Although the intentions of the two individuals are important, it is not determinative.

Generally, courts consider seven factors when determining whether two individuals’ relationship is spousal in nature as in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376, cited in Richardson Estate (Re), 2014 BCSC 2162 (“Richardson Estate”) at para. 22):

  1. Shelter;
  2. Sexual and personal behavior;
  3. Services;
  4. Social;
  5. Societal;
  6. Support (economic); and
  7. Children.

These seven factors are not checklists and “may be present in varying degrees and not all are necessary for the relationship to be found conjugal” (Richardson Estate at para. 23, citing M. v. H., [1999] 2 SCR 3 at para. 59).

Let’s explore each of these factors.

Shelter

Under this heading, courts consider whether the parties lived under the same roof, whether the parties slept on the same bed or had separate rooms, and whether anyone else occupied or shared the available accommodation.

Sexual and personal behavior

There are seven questions to ask under this heading:

  1. Did the parties have sexual relations? If not, why not?
  2. Did they maintain an attitude of fidelity to each other?
  3. What were their feelings toward each other?
  4. Did they communicate on a personal level?
  5. Did they eat their meals together?
  6. What, if anything, did they do to assist each other with problems or during illness?
  7. Did they buy gifts for each other on special occasions?

Services

This heading looks at the domestic services provided by the parties, such as who did the cooking, laundry, shopping, and other household maintenances and support.

Social

This heading looks at how the parties conducted themselves around friends, family, and their community generally. For example, did the parties attend events together, did the parties represent themselves as a couple, and how did their family behave toward the parties?

Societal

This heading is similar to the previous heading, but focuses on the attitude and conduct of others toward the parties.

Support

Three guiding questions assist the court under this heading:

  1. What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
  2. What were the arrangements concerning the acquisition and ownership of property?
  3. Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

Children

What was the attitude and conduct of the parties concerning children?

Who is the deceased’s children?

In consideration of contesting a will, the deceased’s ‘children’ includes both the deceased’s natural children (those related by blood to the deceased) and children the deceased has legally adopted.

Other interested parties who may contest the will

Any beneficiaries (whether they are beneficiaries under the current will, a previous will, or a beneficiary in the event there is no valid will) can contest the will even if they are not the spouse or child of the deceased.

For example, see Do’s and Don’ts of Adding Beneficiaries to a Will, in which the godchildren of the deceased challenged the validity of the new will on the grounds that the deceased lacked testamentary capacity and/or was unduly influenced.

See also Dementia, Undue Influence and Testamentary Capacity, in which disinherited family members challenged the testamentary capacity of their deceased uncle.