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Estate litigation: Can a valid will be challenged?

It is not uncommon for beneficiaries to be disappointed by the terms of a loved one's will. Often this is because the heirs had no true idea of the size of the estate and assumed it to be greater than it was. In other cases, the deceased intentionally leaves a smaller amount to one heir or disinherits someone altogether. Before beginning estate litigation, it is important for disappointed heirs to understand their rights under British Columbia law.

The first question a court may ask is whether the will is valid. This means the deceased had the mental capacity to sign a legal document and that he or she did so freely without coercion. However, even if the will is valid, a child or spouse may have cause to contest it in limited situations.

For example, if the deceased's valid will does not provide funds to reasonably support a surviving spouse and children, the law allows those survivors to ask the court to change the will. The law's definition of spouse is very broad and considers a partner and the deceased to have been common-law spouses if the two lived together as if they were married for at least two years. This includes partners of the same sex as well as opposite sex couples.

Children, on the other hand, must be the biological or legally adopted children of the deceased. Stepchildren may not have the right to request changes in a valid will, nor those for whom the parental rights of the deceased are terminated, such as when they are adopted. Estate litigation for any reason is complex and difficult, and those who feel they have grounds to challenge a will would do well to seek the assistance of a British Columbia lawyer.

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