Frequently Asked Questions
What is undue influence?
- Legally, undue influence occurs, when one person’s act is not their own but essentially that of another person. The influence of the other person is so extensive that anything done by the person (such as writing a will or transferring property) is not really their own act. This is very difficult to prove.
What are some possible signs that someone has been unduly influenced?
- Gifts made to someone that are out of the ordinary,
- An unwillingness to attend meetings or interact with others without this other individual and/or
- Drastic changes to longstanding estate plans or wishes.
What is the legal test for mental capacity to make a will?
- Legal capacity to make a will is actually a fairly low threshold. Essentially, a person must know the extent of their assets and who should benefit from their estate.
If a person has a mental illness does that mean they lack the mental capacity to make a will?
- No, not necessarily. Depression, or a diagnosis of schizophrenia or paranoia do not automatically mean a person lacks mental capacity to make a will.
Validity of a Will
What are some of the reasons to question the validity of a will?
- In broad terms, a will made in British Columbia must meet certain technical requirements such as:
- it must be in writing;
- it must be signed at the end by the will maker;
- it must be signed in the presence of two witnesses; and
- the witnesses and the will maker must all sign in each other’s presence.
Who can challenge the validity of a will?
- Almost anyone who has an interest in the estate. This would include beneficiaries under the will, beneficiaries under a previous will and persons who would otherwise inherit if there was no will.
Can a court change the terms of a person’s otherwise valid will?
- Yes. The law requires a will maker to take into account the interests of the will maker’s spouse and children.
What can a child or spouse do if they feel the will is unfair?
- Any spouse or child who feels they have not been treated fairly under a will can ask the court to vary the will to make provision for them under the will.
Under wills variation laws are there specific amounts that the will maker must leave to their spouse or children?
- No, it is entirely a question of fairness and the Court’s interpretation of fairness on the particular facts and circumstances of each case.
Is there a time limit for a person to make a claim to vary a will?
- Yes. Proceedings must be brought in court within 180 days of the grant of probate.
Can a person who is not a spouse or child apply to court to vary a will?
- No. Claims to vary a will are limited to spouses and children. Grandchildren, brothers, sisters, nieces, nephews have no standing to apply for a variation of a will. (Although they may have standing to challenge the basic validity of a will. See above).
Transfer of Assets Before Death
Is there any way to make a claim if some or all of the will maker’s assets have been transferred out of the will maker’s estate before their death?
What are some indicia of possible improper transfers?
- Some questions to ask are:
- Was the transfer intended to be of real ownership or was it merely for convenience?
- Was the transfer the result of undue influence?
- Was the transfer or gift consistent with the will maker’s stated or known intentions?
The following is general information only and is not intended as legal advice for any specific situation.