Will Challenge (Grounds and Procedure) (BC)

Summary

This practice note provides an overview of challenges to the validity of a will or trust. It begins by summarizing the historical common and statutory law governing wills and intestacies, and it sets out the various issues to be considered in bringing a successful challenge. It outlines the grounds on which a will may be challenged, as well as the onus of the proponent and the attacker of the will. It sets out the formal requirements of a will and explains the presumption of courts when the will appears to be properly executed. It defines testamentary capacity according to WESA and mental capacity according to the courts. It also explains the importance of testamentary capacity of the testator when giving instructions. This practice note discusses dementia as a barrier in finding testamentary capacity as well as the notion of lucid intervals and the determination by courts that testamentary capacity is a question of fact. It explains when a will-maker can fail to provide knowledge and ...