What are My Options if I am Cut Out of a Will?

4 Feb 2021 Legal Services

If you have been cut out of a Will or a loved one has died intestate (without a Will) and their estate is being handled in a way that is not consistent with their wishes, you need to know what options are available to challenge or ‘contest’ the Will or the distribution of their estate. Wills and estate disputes can be difficult to manage and not everyone knows where to start. At Legatum estate litigation our focus is on these kinds of disputes.

Our objective is to help our clients navigate their unique circumstances. This starts with a 45-minute consultation in which we provide you with free legal advice.

Start on the correct legal footing.

As with any legal matter, it is fundamentally important that your estate matter start off on the correct legal footing. This means getting legal advice as early as possible. Starting any legal matter incorrectly can result in confusion (both for you and the courts). This confusion will likely result in you losing your case and paying your legal opponent extra for their trouble. This means that in addition to the humiliation of losing to the person you are in a dispute with, you may also have to pay a portion of their legal fees. To avoid this situation, be sure to get legal advice as early as possible.

See our blog post “What Happens if I am not in the Will” for more details on who can challenge a Will.

What to do if you get cut out of a Will.

Before jumping to any kind of legal action, it is important to consider whether or not the Will is valid. Was the Will drafted by a legal professional? Was the will-maker (now deceased) of sound mind and body when the Will was created? Did she have medical issues that affected her mind at the time the Will was drafted? Is the Will very different than what the Will-maker said? Was the Will-maker influenced by someone (often a child, relative, close friend or caregiver) such that the Will leaves all or an unfair amount of the estate to that one person? Can I get the court to change a valid but unfair Will? When asking these questions, be sure to consider the information below:

Was the Will drafted by a professional?

This is an important first question to ask. To be sure, a court will still review and consider the validity of a person’s estate plans as set out in a Will or document that was not drafted by a legal professional. However, Wills that were not drafted by a legal professional will attract a closer review because these documents do not contain the built-in safeguards that legal professionals are required to include when they draft a Will. It may very well be that the non-professionally drafted document is not the Will-maker’s true estate plan.

Was the Will-maker of sound mind and body when the Will was drafted?

As people grow older the chances of mental decline and developing a cognitive disorder such as Alzheimer’s and dementia increase. Symptoms of dementia do not usually appear suddenly and without warning. Often a decline in mental capacity occurs gradually over years It can be tough to identify the decline at first because the sufferer tries hard to hide it. One of the hallmarks of dementia is that the sufferer becomes easily angered. This anger has an impact on family relationships. The sufferer can make erratic decisions such as cutting loved ones out of a Will for small and sometimes false reasons.

While the existence of a cognitive disorder such as dementia does not by itself invalidate a Will, it does require a careful review of the Will-maker’s medical history around the time the Will was drafted.  If the Will-maker was suffering from mental capacity issues when the Will was drafted (or changed) it may be that the Will is not valid.

Mental Capacity issues are complex.  Courts, legal professionals, and even medical professionals can have a difficult time assessing a person’s level of mental capacity (or incapacity) when a person is alive.  Assessing a person’s mental capacity after they have died (at the time the Will was drafted) is even more challenging.  Again, get legal advice as early as possible if you suspect the Will-maker was suffering from a cognitive disorder when the Will was drafted.

Was the Will-maker pressured to change their Will (undue influence)?

There have been a number of court cases over the past few years in which a Will was challenged because the Will-maker was pressured to change their Will – pressured usually by the Will-maker’s child, relative, close friend or even caregiver. The court calls this ‘pressure’ undue influence. A challenge based on a claim of undue influence is usually started by a family member who is cut out of the new Will. All or a substantial amount of their inheritance is now going to the person who will get the most under the new Will.

Undue influence is a difficult thing to prove. One of the reasons for this is that the main witness – the Will-maker – has died and cannot tell the court why she changed her Will. The other key witness is the person who will inherit the benefits under the new Will. That person is of course going to give evidence to support their position that the new Will is exactly what the Will-maker wanted.

However, Courts have invalidated Wills based on undue influence. Undue influence cases are also hard to prove because they require proving something more than just manipulation. The Claimant must show the undue influencer coerced the Will-maker into changing her Will.

If you feel that there is evidence that a loved one was unduly influenced into changing their Will get legal advice as soon as possible. An early review of available evidence is crucial in all estate litigation cases. However, in cases of suspected undue influence, it is particularly important to review and gather evidence early.

Can I get the court to change a valid but unfair Will?

Maybe. If you are a spouse or a child of the Will-maker you can – as a right – challenge the fairness of a valid Will. Courts in British Columbia have the authority to change even a valid Will to make it fairer. For example, if a Will-maker cuts a child out of the Will because the child married the ‘wrong’ person or if she left all or most of her estate to one child at the expense of others, a Court may alter the Will such that the estate is divided up more equally. If a Will-maker did not leave anything for a common-law spouse and left all or most of the assets to her children from an earlier relationship, the Court may also redistribute the assets to include a fair portion goes to the common-law spouse.

The challenge with estate litigation is that every case is unique in its facts. It is therefore really important to get legal advice on your specific facts as early as possible. If you feel that a Will is unfair, talk to a lawyer and they can help you review your legal options.

Legatum Estate Litigation can help.

If you would like to learn more information about what your options are if you are cut out of a Will, or to find out about our suite of estate litigation services, please contact the team at Legatum Estate Litigation so that we can help answer your questions.