Script 179 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

A beneficiary is sometimes disappointed with their share of what they receive under a will. It may be less than what they feel is fair, or they may not receive anything at all. Beneficiaries can also suffer hardship when someone dies without a will. What can you do?

This script explains your rights and remedies in the following circumstances:

• A will appears to be unfair toward a spouse or child.
• The person making the will may not have had the necessary mental capacity to do so.
• There may have been undue influence or coercion on the person making the will.
• The person died without making a will.

Consider, first, if a will appears to be unfair toward a spouse or child
Even if a will is technically valid, a court may still change it if the court decides that the testator (i.e., the person who died) has been unfair or unreasonable toward a spouse or child. The Wills Variation Act gives the court the power to change a will that doesn’t adequately provide for the maintenance and support of the deceased person's spouse or children. If the court decides to change the will, it can order that the estate must provide for the spouse or children in a way that is adequate, just and equitable in the circumstances.

Does “spouse” include a common-law spouse?
Yes, “spouse" includes a common-law spouse. But to be considered as a spouse, you must have lived with the testator in a marriage-like relationship for at least two years immediately before the testator’s death. Marriage-like relationships between people of the same sex are included, so a gay or lesbian partner can make a claim if they lived with the testator for at least two years just before the testator died.

What does the definition of “children” include?
"Children" here means children of any age, born both in and outside of marriage, and it includes legally adopted children. But it doesn’t include stepchildren, or natural children who have been adopted by someone else.

How does the court decide whether the will adequately provides for the spouse or children?
The court considers many things. These include:

• the value and nature of the estate (i.e., the money and property owned by the testator),
• the financial circumstances of the applicant (i.e., the spouse or child asking the court to change the will),
• the financial circumstance of the other beneficiaries, and
• the character and conduct of the applicant towards the deceased person.

The court will also consider whether the deceased testator, while alive, looked after the applicant.

What does the court do then?
The court then considers what the testator or deceased person should have done. If the will reflects anger or favoritism or without good reason ignores the genuine needs of the testator’s spouse or children, the court will probably change the will to correct the situation.

Next, consider a testator’s lack of mental capacity
Even where a will appears to meet the technical requirements of the law, a court may change it if it finds that the deceased person lacked the necessary mental capacity to make a will. A person can be eccentric or suffer from a mental disorder and still be able to make a will. But they must have "testamentary capacity.” This means that the testator must:

• understand that they’re making a will,
• understand the effect of the will,
• appreciate the amount of the property they’re distributing with the will, and
• understand and appreciate that their will should look after their spouse and children and not unfairly ignore them.

If a court finds that the deceased person lacked any of these elements when they made their will, then the will isn’t valid.

What happens to the estate if the testator lacked mental capacity?
If the deceased person had no other will, then the situation is the same as if they had never made a will. Their estate will then be divided according to the Estate Administration Act. For more information on this, refer to script 177 on “What Happens When You Die Without a Will?” If the deceased person had made another, earlier will when they had testamentary capacity, then the court will find that earlier will valid.

What about undue influence or coercion?
Sometimes a will seems so unreasonable that it’s suspicious. While there’s nothing illegal in suggesting to someone that they remember you in their will, the court will take away any gift in a will that was made because of undue influence or pressure applied to the person who made the will. Undue influence or pressure can range from persistent persuasion to a threat of violence.

What will the court do if there has been undue influence or coercion?
The court will cancel the will if it finds undue influence or pressure. But undue influence or coercion is difficult to prove, and the burden of proving it is on the applicant.

What happens if the person dies without a will?
If a person dies without a will, then the Estate Administration Act applies. Refer to script 177 on “What Happens When You Die Without a Will?”

You should contact a lawyer
If you have a problem like the ones described here, you should see a lawyer. There are “limitation periods” or deadlines that must be met, which can prevent you from enforcing your right if you delay in acting. For example, if a spouse or child feels that the will doesn’t adequately provide for their maintenance and support, they must start their action within six months from the date of the grant of probate (i.e., when the will is declared valid).

[updated July 2006]

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