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When something just isn’t right with a parent or spouse’s will

This article discusses factors the court considers when a spouse or child challenges the will of a decedent.

When a Vancouver resident passes away, his or her family members may expect to receive specific assets or a specific portion of the estate. If that doesn't happen, they may suspect that something isn't right about the will.

The legal or common-law spouses and biological or adopted children of individuals deserve fairness when it comes to the settling of an estate after death. Most reasonable individuals would want to take care of the above people in the event of their death, so if a will fails to do so, there could be a nefarious reason.

The will appears valid

What many people fail to understand is that a court may still nullify the will under certain circumstances. Merely executing a will in accordance with the law does not mean that it will stand up to the scrutiny of the court when the time comes. If the provisions of a will fail to reflect what most reasonable parents and spouses would do in a similar situation, the court may change it.

For example, if the deceased has an adult child with special needs, a reasonable person would expect the parent to make provisions for him or her. If the will does not, it presents a red flag for the court that something isn't right. Unless the maker of the will outlines a reasonable argument for not providing for a child or spouse, the court may change it. Evidence may reveal that the maker of the will executed it despite the following legal deficiencies:

· Someone coerced the will-maker into changing the will.

· Someone unduly influenced the deceased into changing the will.

· The will-maker lacked the legal capacity to execute the will since he or she failed to understand its contents, the effect of the will, the need to provide for a spouse or child, or the amount of property involved. It's possible that he or she did not even realize the document was a will at the signing.

Under the above circumstances, the court may invalidate the will and proceed as if the will was never signed, which means that the same distribution rules would apply as if no will ever existed. Moreover, the court may consider what a reasonable person would have done under similar circumstances.

Other factors could also invalidate the will

The factors already outlined are not the only ones that a court takes into account when considering a request from an heir or beneficiary to invalidate a will. Others factors include the following:

· The court considers the financial situation of the child or spouse making the request.

· It matters whether the individual making the request relied on the deceased for financial support, and if so, how dependent he or she was on that support.

· The court reviews the financial situations of the remaining heirs and beneficiaries.

· The court looks at the nature and value of the property in the estate.

The court will also look at the relationship between the deceased and the spouse or child. For instance, the conduct of a spouse or child toward the deceased could have influenced the decision not to adequately provide for him or her. Contesting a will presents a challenge under the best of circumstances. It would greatly benefit anyone wanting to do so to consult with a lawyer experienced in these matters before proceeding.