Can a Will Be Changed After Death In BC?

Writing a will is critical in ensuring your one’s final wishes are carried out. Without a legally valid will, any assets your loved one accumulated over time won’t be distributed according to their personal intentions. Instead, BC courts will rely on the Wills, Estates, and Succession Act (WESA) to determine who receives the will-maker’s resources. While a will is designed to be a legally binding document, there are circumstances in which a will can be changed or challenged after the will-maker, also known as the testator, has passed away.

Under WESA, a will needs specific requirements to be considered legally valid. It must be:

• In writing
• Signed by the will-maker
• Signed in front of two witnesses who are at least 19 years old

After the will-maker’s death, the will is legally binding and goes through the probate process. In certain situations, exceptions allow the court to allow modifications to help ensure the will-maker’s wishes are properly honoured.

Though a will is generally considered final, there are key exceptions where it may be challenged by beneficiaries and changed by the courts. Outside of the following exceptions, any attempts to change a will after the testator’s death are illegal and could lead to forgery or fraud charges. Legal exceptions to change a will after death include:

Generally speaking, testators are allowed to allocate their property, money, and gifts to beneficiaries in amounts of their choosing. However, WESA does provide protections for a will-maker’s spouse, children, and other dependents. If these individuals have not been adequately provided for in a will, they have the right to contest the will in court. The court then uses its discretion to redistribute the estate to provide reasonable support for eligible family members.

Legally married or common-law spouses, biological and adopted children, and dependents who rely financially on the will-maker can file a claim within 180 days from the date the probate was granted. Claimants must show they require additional support beyond what was included in the will. The courts assess whether the testator had an ethical duty to provide for the claimant based on factors like past relationships and commitments.

Ideally, a will should be free from error and accurately reflect the testator’s exact intentions without question. Unfortunately, mistakes do sometimes occur, such as an incorrect name spelling or missing number in an address. Other times, mistakes in a will could be more serious. This would include missing or incorrectly relayed instructions. In these cases, the court may approve corrections or recertify the will so that it aligns with the testator’s wishes. Depending on the errors in question, the court may require evidence to prove that a genuine mistake was made when writing the will.

The core tenet of a will is that it details the maker’s personal desires without any pressures, deceit, or manipulations from others. Undue influence occurs when the testator is forced or directed in some way to craft their will in a way that does not conform to their independent wishes. Beneficiaries or individuals who believe they should have been beneficiaries can contest a will if they suspect undue influence. If undue influence occurs, the court may alter or nullify the will’s provisions to prevent wrongful gains by those who exerted coercion.

Sometimes issues that could otherwise cause a will to be void can be corrected in court. For example, the court can choose to overlook requirements like proper signing and witnessing if there is sufficient evidence that the document in question was intended to be the testator’s final will. This provision is in place to keep the legal process focused on respecting the deceased’s true wishes rather than dismissing a will due to technical mistakes.

An executor does not have the power to amend any will terms. Their sole responsibility is to carry out the testator’s instructions. The executor can petition the court if they require guidance in particular situations. These include:

• Will variation claims form a spouse, child, or other dependent
• Recertification issues in the evidence of clerical errors or drafting mistakes
• Ambiguities in the will that cause unclear interpretations

Beneficiaries typically cannot be changed after the will-maker is deceased. Alterations can only occur if a will variation claim is granted or if the will is deemed invalid due to an issue like fraud or undue influence.

There are only two ways to change an executor after the will-maker passes away. First, the executor can choose to step down from their role if they are unwilling or unable to perform their duties. The second way is to have a court remove the executor. This usually occurs if the executor acted irresponsibly, failed to fulfill their duties, or acted against the best interests of the estate. If the executor is removed, the court must appoint a new executor, often a beneficiary or neutral third party.

Estate litigation cases are complex. Dealing with personal matters and emotions only complicates the process further. If you suspect there is an issue with a deceased loved one’s will, you may have a valid claim to contest the document. Reach out to our team today to learn more.