Is the perception true that wills are often contested and redistributed in court proceedings?

How might I solidify my will to avoid contests?

Curtis

Curtis

Kamloops, BC

If, after your passing, your spouse or children aren’t happy with what you left them in your will, they may be able to challenge the will in court. This is known as a wills variation claim. To be successful, they must show the will doesn’t “make adequate provision for their proper maintenance and support.”

While it’s true that starting a variation claim is relatively easy, convincing the court to redistribute the will is another story. There are a number of factors the court will consider, including:

  • how much the person challenging your will relied on you financially during your lifetime  

  • their financial circumstances

  • the nature of your relationship with them

  • your reasons for distributing your assets as you did

  • the size of your estate

  • the other beneficiaries named in your will

Protecting your will from a variation claim

To safeguard your will from being contested in court, carefully consider your spouse and children’s needs. When crafting your will, try to distribute your assets in a way that accounts for their unique needs. You should also speak with your family about your wishes and what you have included in your will. This will help ensure that none of your family members feel neglected, and will allow them time to ask you questions about your planning.

If you aren’t on good terms with a spouse or child, and a variation claim looks likely, consider going to an experienced estates lawyer. They may recommend different estate planning techniques to reduce the size of your estate. Here are some examples:

  • If you own a home, to change the form of ownership to a joint tenancy.

  • To use beneficiary designations in your registered accounts — like TFSAs or RRSPs — and life insurance policies. 

  • To move your assets into a trust.

For more, watch this webinar clip and check out this guidance on challenging a will.

Amy Mortimore, KC

Amy Mortimore, KC

Clark Wilson LLP
  • This information applies to British Columbia, Canada
  • Reviewed for legal accuracy in September 2023

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