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There’s a Will, but it could be an invalid Will

Being left out of the Will of a close family member can be a shocking experience and may leave a person who was expecting an inheritance feeling betrayed.  Family relationships between beneficiaries of the Will and those left disinherited can be incredibly strained.  Sometimes the revelations of a Will come as a complete surprise and sometimes there are good reasons for the confusion and bewilderment – after all, just because a Will exists, does not mean that it is valid or that it reflects the true wishes of the deceased.

What circumstances in British Columbia would make for an invalid Will?  When should beneficiaries question the validity of a Will and how can they contest it?

In order for a Will to be considered valid and binding there are a number of factors that must be satisfied to meet the requirements of BC Estate Law and the Wills, Estates and Succession Act that came into effect March 31, 2014.   If these factors are not satisfied, the validity of the Will may be contested in court, and there is a good chance the Will would be declared an invalid Will.

Who Can Make a Will?

Under British Columbia law, there are two factors that the person making the Will (the testator) or having a Will written on their behalf must meet in order for the Will that is made to be considered valid.  First, the testator must have been mentally competent during the time the Will was made. If a person is contesting the testator’s mental capacity at the time the Will was written, that person will have to provide the court with medical evidence that supports the claim that the testator lacked mental capacity at the time that the Will was made.

Second, in British Columbia the testator must be 16 years of age or older at the time the Will was made.

Who has to Witness a Will?

If the testator is of sound mind and of legal age and makes a Will, that Will must be signed by the testator in the presence of two witnesses who must meet specific requirements.  The witnesses must sign the Will as proof of their presences, and neither witness can be a beneficiary of the Will, nor be a spouse of a named beneficiary of the Will.  If a Will is not appropriately witnessed, it may be declared invalid by the court.

How does a person get a Will declared invalid by the court?

If a person has a legitimate reason to believe that the Will that was left is invalid, it is important to seek legal advice. A lawyer who is experienced in BC Estate Law can help identify legal problems with a Will and effectively guide the client through the process of contesting the document in court and enabling the client to get the share of the estate that they are entitled to.

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