Validity disputes are different from wills variation
A wills variation claim accepts that a will is valid but asks the court to change its distribution. A validity challenge questions whether the will should be admitted to probate or given effect. The theories should not be casually blended.
B.C.’s Wills, Estates and Succession Act governs formal validity and includes provisions allowing the court in some circumstances to cure certain defects.
Testamentary capacity focuses on decision-making ability
Capacity is not determined simply by age, diagnosis or whether a person needed help with daily life. The legal question concerns the will-maker’s ability at the relevant time to understand the nature and effect of making a will, the property being disposed of and the claims of people who might reasonably expect consideration.
Medical records can be relevant, but so can lawyer notes, witness evidence, correspondence and the coherence of the estate plan over time.
Undue influence is more than persuasion
Families influence one another all the time. Undue influence concerns coercion or pressure that overbears the will-maker’s free decision. Evidence may be circumstantial and can include dependency, isolation, abrupt changes, control over appointments or communications, and the circumstances in which instructions were given.
A surprising gift or unequal distribution does not by itself prove undue influence. Context matters.
Execution and suspicious circumstances
Questions can also arise about signatures, witnesses, multiple versions, handwritten changes or electronic records. Preserve the original will and the complete estate-planning file where available.
The province’s current wills and estate planning information links to WESA and probate resources.
Evidence to gather early
- Original will and prior wills
- Lawyer or notary file, if obtainable through proper process
- Medical and care records
- Emails, messages and calendars around the signing
- Names of witnesses and people present during instructions
- Financial records showing major transfers or dependency
Questions people often ask
Does dementia automatically invalidate a will?
No. Capacity is assessed using the legal test at the relevant time and cannot be inferred from a diagnosis alone.
Is an unfair will automatically invalid?
No. Unequal treatment can prompt questions but does not by itself establish invalidity or undue influence.
What should happen to the original will?
Keep it secure and unaltered. Do not write on, staple, remove pages from or otherwise change the document.