A testator may choose to disinherit one or more of his or her children as a result of family estrangement or other factors. According to law, however, an individual is required to ensure that his or her spouse and children are not unjustly disinherited and are adequately provided for. At Vancouver’s Onyx Law Group, we launch wills variation claims on behalf of spouses and children who have been unjustly excluded from an estate.
British Columbia’s Wills Variation Claims
A disinherited spouse or child can claim for relief pursuant to s. 60 of the Wills, Estates and Succession Act (“WESA”).
The disinheritance of a child may arise in a number of scenarios. A parent may simply favour one child over another. In cases of longstanding conflict or abuse, a parent may want to distance him or herself from the child. Despite the testator’s intentions, however, the law may require that a disinherited child be provided for.
Unlike other provinces, British Columbia has legislation in place that allows a court to vary a will and to redistribute assets so that disinherited spouses and children receive a just and adequate portion of the estate. A lawyer can help you to assess whether you may be able to claim an inheritance from a parent’s estate and whether taking legal action is in your best interests personally and financially.
A deceased person owes a moral obligation to provide for his or her adult independent children, and owes a legal and moral obligation to provide for his or her minor children.
Factors to consider for moral obligation concern the quality of the relationship between the deceased person and the child, any valid reasons for disinheritance including estrangement and abuse of the parent, and whether the child has already inherited from his or her other parent, etc. In the cases of estrangement, conduct of both the deceased parent and the child will be examined by the court because if a parent can be faulted for the estrangement, the estrangement will not necessarily be a bar to the child’s claim.
To assess the legal obligation owed to a minor child, the court will consider the parent’s notional child support obligations pursuant to the Child Support Advisory Guidelines to determine the quantum of the obligation owed.