If you think that a will was not written properly or that a loved one was taken advantage of when writing their will, the professional team of wills, estates, and trusts lawyers from Linley Welwood can help you challenge the validity of a will to make it null and void. All of their wills, estates, and trusts lawyers are highly knowledgeable in how to make a will null and void, so you can rest assured that your case will be in the most capable hands.
Challenging the Validity of a Will
In order for the validity of a will to be challenged, a probate action must be commenced. In the event that a will appears to be executed properly, the court will consider the will valid unless a beneficiary named in a prior will or in the current will comes forward with allegations of improper execution, testamentary incapacity, or undue influence.
If the will is found to be invalid, the testator’s next most recent valid will would be used; however, if there is no prior valid will, the deceased will have died intestate and the estate will be distributed according to the legislation in British Columbia’s Wills, Estates & Succession Act (WESA) that deals with estate administration and intestacy situations.
Improper Execution
Since WESA governs the execution of wills in British Columbia, wills that do not follow the letter of the law may be considered invalid; however, there are provisions in WESA that allow the court to review other documents and to make a determination as to whether or not they are testamentary in nature and whether or not they express the final wishes of the deceased. Under WESA, all wills must be in writing and executed in the presence of two witnesses.
Testamentary Incapacity
The will-maker must know what a will is, the general nature of their assets, whom they have a moral duty to, and they must be free of delusions in order for them to have testamentary capacity. In the event that the will-maker does not have testamentary capacity, the will could be considered invalid, if the person contesting the will provides sufficient evidence of testamentary incapacity.
Undue Influence
Anyone alleging undue influence must prove that the will in question was created under influence from another party and that it does not reflect the will-maker’s free wishes. This can be a difficult allegation to prove, depending on the facts surrounding the testator giving wills instructions, the execution of the will, who stands to benefit, and to whom the testator had a duty to. If there is sufficient evidence to prove undue influence, the will would be considered invalid.
If you would like to learn more about how to make a will null and void, or if you are interested in their legal services for wills, estates, and trusts, please contact Linley Welwood at 604-850-6640 or by filling out a contact form on their website.