Disinherited Spouse Lawyers

Lawyers for Disinherited Spouses

We represent spouses who have been unjustly excluded from an estate.

A commitment of marriage usually means spouses will provide for one another in the event of their passing. In some cases, however, a spouse may be disinherited and must take legal steps to obtain a fair share of the estate.

At Vancouver’s Onyx Law Group, we represent clients who need the advice and guidance of a lawyer in order to secure their fair share from their deceased spouse’s estate. In every instance, we engage each client to understand his or her objectives for legal action. We offer practical and effective solutions tailored to meet their needs.

Legal basis for challenging a disinheritance

British Columbia’s s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (WESA) allows spouses and natural and adopted children of a testator to ask the court to vary the terms of the will in the event they were unjustly disinherited or inadequately provided for. The court may choose to impose an alternative distribution of the estate assets that ensures the spouse’s share is “adequate, just and equitable in the circumstances.”

Spouses are owed a legal and moral obligation to be provided for, whereas adult independent children are only owed a moral obligation to be provided for. A spouse’s legal obligation is determined on the notional basis that the spouse and the deceased person had separated just before the deceased person’s death. The legal obligation is then calculated by the court pursuant to the Family Law Act.

The moral obligation that a deceased person owes to his or her spouse is determined based on the factual matrix, taking into account factors such as whether the surviving spouse had acted as the deceased person’s caretaker prior to his or her death, the length of the marriage, the standard of living that they enjoyed together, any sacrifices the surviving spouse made in furtherance of the family, etc. As such, due to the existence of the legal obligation owed to a spouse, a spouse’s wills variation claim pursuant to s. 60 of the WESA typically ranks above the deceased’s children.

Situations which may give rise to a disinherited spouse

Spouses may be unjustly disinherited in the case of blended families, where the second spouse is not provided for in favour of the children from the first marriage. Sometimes, the testator simply chooses to leave all of his or her assets to individuals other than his or her spouse, even if there has only been one marriage. In these cases and in other scenarios, the disinherited spouse has the legal right to challenge the testator’s will.

In circumstances where a spouse, in anticipation of a marital breakdown, transfers all of the family property into a trust to put the assets outside the reach of the other spouse, such a transaction can be challenged by the wronged spouse as a fraudulent conveyance pursuant to the Fraudulent Conveyance Act, R.S.B.C. 1996, c. 163.

British Columbia Disinheritance Claim Lawyers

The emotional stress of undertaking any legal action can be compounded when the issues at stake are deeply personal and involve close family members. At Onyx Law Group, we choose to be a place of solace for our clients while still providing competent and passionate legal advocacy. Our lawyers seek equitable solutions for you and we stand by you through the process.

Consultation

We believe it’s important to know your legal rights and obligations before making any decisions. Contact us today to discuss your matter with a passionate and knowledgeable lawyer who can advise you on the best steps forward.

How a wills variation claim works for a disinherited spouse

A spouse who is left out of a will, or left far less than seems fair, is not stuck with the document as written. Section 60 of the Wills, Estates and Succession Act (WESA) lets the Supreme Court of British Columbia rewrite a will where the will-maker failed to make adequate provision for the proper maintenance and support of a spouse or child. The court can order whatever provision it considers “adequate, just and equitable in the circumstances.” One limit matters up front: section 60 only applies where there is a valid will. If the deceased died without one, the fixed intestacy shares in Part 3 of WESA govern instead, and there is no variation claim.

Who counts as a spouse

Standing turns on the definition in section 2 of WESA. You are a spouse if you were married to the deceased, or if you lived with them in a marriage-like relationship for at least two continuous years before the death. Common-law partners who clear that two-year mark have the same standing to bring a variation claim as a married spouse. Separation can end it, though. Under section 2(2), spouses stop being spouses for WESA purposes when a married couple separates with no reasonable prospect of reconciliation, or when a marriage-like relationship is terminated. A spouse who had separated before the death may have lost the right to vary the will entirely, which is why the timing and facts of a separation often decide these cases before the merits are ever reached.

Legal and moral obligations: the Tataryn framework

The Supreme Court of Canada set the analysis in Tataryn v Tataryn Estate, [1994] 2 SCR 807. A will-maker owes two kinds of duty to a spouse. Legal obligations are what the law would have required had the relationship ended during the will-maker’s lifetime — roughly, the property division and support a spouse could have claimed under the Family Law Act. Moral obligations are society’s reasonable expectations of what a decent person would do for a spouse. Legal obligations rank first; moral claims are met to the extent the estate allows after them. For a long marriage where one spouse contributed to the household and the other’s career, that combination often supports a substantial share of the estate.

The deadlines that end the claim

The clock is short and unforgiving. Under section 61 of WESA, a variation proceeding must be started within 180 days from the date the representation grant (probate) is issued, and the personal representative must be served within 30 days after that 180-day window closes, unless the court extends the time. An executor is separately barred from distributing the estate within 210 days without the consent of everyone who could claim, or a court order (section 155). Miss the 180-day filing deadline and the claim is generally gone, no matter how strong it would have been.