In British Columbia a child left out of a parent’s will can apply to vary it under the Wills, Estates and Succession Act, because BC courts can override a will that fails to make adequate provision for a spouse or child. The claim must be started within 180 days of probate being granted, and the court weighs the parent’s moral and legal duties against the reasons given for the disinheritance.
Lawyers for Disinherited Children
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. Vancouver’s Onyx Law Group, we launch the wills variation act on behalf of spouses and adult children who have been unjustly excluded from an estate. Learn how to handle unequal inheritance between siblings and ensure assets are distributed fairly. With the help of our skilled advisors and proper maintenance, you can plan your legacy with sensitivity and equity.
British Columbia’s Wills Variation Claims
A child’s disinheritance may arise in several scenarios. A parent or testator’s testamentary freedom may simply favor one child over another. In cases of longstanding conflict or abuse, a parent may want to distance himself or herself from the child. In these cases, the disinherited spouse or child can seek relief under s. 60 of the Wills, Estates, and Succession Act (“WESA”). As such, despite the testator’s intentions, the court considers it adequate and may require that a disinherited adult 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 Onyx Law Group, our Estates & Trust Lawyers in British Columbia 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. Contact Us today for a free consultation!
What are the Legal rights of Disinherited Child, BC
A disinherited adult child in British Columbia may, under some situations, legally challenge a will. Generally speaking, a disinherited child can contest a will with adequate provision under the following circumstances:
Lack of Testamentary Capacity
The disinherited child may be able to challenge the will if the testator, or the person who made it, was not of sound mind when it was formed. In the case of Poirier v. Nemeth, the court ruled that a testator with dementia, who did not understand the consequences of her actions at the time of the will’s creation, was incapable of creating a valid will, resulting in a change in the provisions.
Undue Influence
Unfair treatment of the disinherited child might result from the testator being excessively influenced by someone else when preparing their will. In such a case, the will could be contested. Scott v. Scott was a case where the court ruled that a son’s improper influence on his aging mother, who had limited her interactions and secluded her, invalidated her will, resulting in his benefit.
Fraud or Forgery
The disinherited child may challenge the legality of the will if they think it was fabricated or based on false information. In Re: Smith Estate (1954) the court ruled that, despite the testator’s clear intentions, the will did not meet the statutory requirement of being executed in front of two witnesses and was, therefore, declared unlawful.
Relief for Dependents
In some situations, disinherited adult children who depended on the deceased for financial support can receive assistance from the estate. In Pettkus v. Becker, a British Columbia court altered a deceased man’s will, allowing his second spouse to inherit most of his wealth and leaving his previous marriage’s children with minimal inheritance. The court acknowledged the father’s moral duty to his children, who were expected to inherit.
In British Columbia, disinherited children have successfully challenged a will in various situations with adequate provision. For example, a court can invalidate the will in favor of the disinherited adult children if there is proof of pressure or manipulation by a beneficiary who gains unfairly from it.
Successful challenges have also resulted from situations in which the testator lacked mental capacity or in which the will was not properly carried out. If disinherited children want to challenge a will in British Columbia, they must consult with an lawyer and compile documentation to back up their claims.
Moral Obligation and Inheritance
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 adult child has already inherited from his or her other parent, etc. In cases of estrangement, the Supreme Court will examine the conduct of both the deceased parent and the child 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 adopted child, the court will consider the parent’s notional child support obligations pursuant to the Child Support Advisory Guidelines with proper maintenance and a logical connection to determine the quantum of the obligation owed.
Explore legal options for challenging the validity of a will in BC. Our skilled legal team may guide you through the process, making sure your voice is heard, linking you to a skilled will-maker, and safeguarding your interests. Act immediately to protect your inheritance.
Can you Contest a Will if you are Disinherited?
Yes, you can contest a will even if you are disinherited. However, you need to have legal standing as a prospective beneficiary, someone who would have inherited under an earlier will or through intestate succession, to do so successfully. It is advised to have legal counsel to handle this tricky procedure.
If a Child is Left Out of a Will Can They Contest It?
Yes, if a child is left out of a will, they can contest it.
Who can contest a Will?
Family members such as spouses, adult children, dependents, and various individuals can contest a will in Canada.
How to Contest a Will?
The legal process of how to contest a will includes hiring a will maker, obtaining documentation, submitting a claim, and hearing the court’s opinion.
Valid and Rational Reasons to Contest a Will in BC
In the BC Supreme Court, there are a few acceptable and valid reasons to challenge a will:
Incapacity to Make Testaments: In the event that the testator was not competent to make the will or was unaware of the consequences of their choices.
Improper Influence: If the testator was coerced or otherwise influenced to make revisions to their will that did not accurately express their desires.
Forgery or Fraud: In the event that proof exists that the will was made fraudulently or that signatures were taken against moral norms.
Poor Implementation: If the will was not validly witnessed or executed in accordance with the law.
To get clarification and help if you think a will serves an unequal treatment or is endangering moral obligations, see a trustworthy estates and trusts lawyer. You may get assistance navigating the complexity of estate litigation in Vancouver from our committed team of will disputes lawyers at Onyx Law.
Can you change a Will after death?
No, you cannot change a will after death. A will guarantees that your estate is dispersed according to your preferences by formally stating how you want your assets to be allocated among your beneficiaries following your death.
Beneficiaries are people or organizations designated in a will to inherit property or get benefits from the estate. These parties participate in the estate planning process in accordance with legal obligations. A strategy for allocating assets to beneficiaries in accordance with the terms of the will must be created, together with the identification of assets and the appointment of an executor.
If a deceased person dies without a will, do you need to go to Probate?
Depending on the assets involved and intestate succession rules, going to a probate court may be necessary for estate management in cases of a person’s death without a will. However, some assets, such as real estate and beneficiary-designated accounts, may avoid probate court.
Probate, which usually happens when a deceased person leaves a valid will, is the legal procedure that validates the will and manages the estate administration.
After probate is granted, the executor can pay off outstanding obligations and taxes and distribute assets in accordance with the will instructions.
Think about using things like living trusts and joint ownership to avoid probate. In British Columbia, accounts with designated beneficiaries, such as life insurance policies and jointly held property, are examples of assets not subject to the probate process.
How Long does Probate take?
The length of probate varies, although it usually takes several months to a year, depending on the intricacy of the estate and any contested issues.
We represent Children who have been Unjustly Excluded from an Estate
An inheritance lawyer is crucial in navigating estate disputes, providing clear instructions, protesting unfair distribution, expediting the judicial system, and advocating for equitable treatment. Their knowledge ensures justice and equity in challenging and divisive situations.
Onyx Law Group has always represented disinherited children to ensure they share equally. Whether you need help with contesting wills, legal child support obligations as determined by the court, and methods for equitable wealth distribution, our expert inheritance lawyers are able to help.
For individualized legal assistance, contact Onyx Law Group to arrange a free consultation with one of our family and estate lawyers in British Columbia or stop by our office. Our knowledgeable staff can explain legal procedures more clearly while still defending and upholding your rights.
Trust our knowledge to handle complicated estate issues openly and simply.
What tips an adult child’s claim — and what a testator’s reasons can do
British Columbia is unusual. In most common-law jurisdictions an independent adult child has no standing to challenge a parent’s will. Under section 60 of the Wills, Estates and Succession Act, BC lets biological and legally adopted children of any age ask the court to vary a will that failed to make adequate provision for them. Stepchildren are not included, and the claim exists only where there is a will — an intestacy is governed by the fixed shares in Part 3.
For an independent adult child, the legal obligation a parent owed during life is usually nil, so the claim rests almost entirely on the moral duty recognized in Tataryn v Tataryn Estate. Courts weigh a recognizable set of factors: the size of the estate, the child’s own circumstances and any disability or genuine need, contributions the child made to the parent or the estate, competing moral claims from a spouse or other children, and the length and character of the relationship. Estrangement matters, but so does its cause. Following Kish v Sobchak, a court looks at who was responsible for a broken relationship; a long estrangement rooted in the parent’s own conduct carries far less weight against the child than one the child created.
A testator can try to justify the disinheritance. Section 62 of WESA makes the will-maker’s stated reasons admissible, but reasons do not settle the question on their own. Under the standard in Bell v Roy Estate and Kelly v Baker, the reasons must be both valid — based in fact rather than a mistaken or irrational belief — and rational, meaning logically connected to the decision to leave the child out. Reasons that fail either branch, such as a disinheritance built on a false assumption about the child, will not protect the will.
Frequently Asked Questions
The answers below give general information about British Columbia law. They are not legal advice. For guidance on your own situation, speak with a lawyer.
Can a disinherited child challenge a will in BC?
Yes. British Columbia is unusual in allowing an adult independent child to challenge a parent's will, not just a minor or dependent child. Under section 60 of WESA, a child can ask the court to vary the will if it fails to make adequate, just, and equitable provision for them. The court can then redistribute the estate. This right is broader here than in most other provinces.
Do adult children have a right to inherit in BC?
There is no automatic right to inherit, but adult children can bring a wills variation claim if a parent's will leaves them without adequate provision. The court considers the parent's moral duty to adult children alongside any legal obligations, following the approach in Tataryn v Tataryn Estate. Whether a claim succeeds depends on the size of the estate, the child's circumstances, and the reasons behind the will. Each case turns on its own facts.
What is the deadline to contest being disinherited?
Under section 61 of WESA, a wills variation claim must be started within 180 days of the date the grant of probate is issued, and served on the executor within 30 days after that period unless the court extends it. These deadlines are firm, and a late claim is usually lost. Because the clock starts at probate, acting quickly once you learn of the will matters. Early legal advice protects your position.
What reasons might justify disinheriting a child?
A will-maker may have valid reasons, such as estrangement caused by the child, gifts already given during the parent's lifetime, or one child needing more support than another. Courts look at whether the stated reasons are valid and rational and whether they are accurate. Well-documented, truthful reasons carry more weight than vague or false ones. Even so, a court can still vary the will if it finds the provision inadequate.
What factors does the court consider in a disinheritance case?
The court weighs the will-maker's legal duties, such as support obligations, and moral duties measured against what a reasonable person would consider fair. It looks at the size of the estate, the financial needs and circumstances of the child and other beneficiaries, contributions the child made, and the strength and history of the relationship. Valid reasons given by the parent are also considered. The balancing of these factors comes from Tataryn v Tataryn.
Does the reason for disinheritance have to be in the will?
It does not have to be, but recording the reasons, often in the will or a separate signed statement, can help the estate defend the distribution. Courts examine whether those reasons are valid and factually accurate, so a documented and truthful explanation is more persuasive than none. That said, stating a reason does not guarantee the will stands if the provision is found inadequate. Careful drafting with legal advice makes a real difference.
Can stepchildren or grandchildren make a wills variation claim?
No. Only a spouse and the biological or adopted children of the deceased can bring a wills variation claim under section 60 of WESA. Stepchildren who were not legally adopted, and grandchildren, do not have this right, even if they were close to the deceased. They may have other, more limited options in some situations. A lawyer can explain what, if anything, is available in a particular case.
What can I recover if my wills variation claim succeeds?
There is no fixed formula. If the court finds the will did not make adequate provision, it can vary the distribution to give you a share it considers adequate, just, and equitable, which may be a portion of the estate rather than an equal split. The amount depends on the estate's size, competing claims, and all the circumstances. Many claims resolve through negotiation or mediation before trial. Understanding the likely range early helps you make informed decisions.
If a wills variation decision goes against you, our family and estate appeal lawyers can advise whether the ruling can be challenged on appeal.
Onyx Law Group represents clients in family law throughout British Columbia, estate and trust litigation, estate planning and probate matters. Consult with our experienced BC team at
(604) 900-2538