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.
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.
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.
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.
We believe it’s important to know your legal rights and obligations before making any decisions. That’s why we offer 30 minute free consultations to give you the opportunity to discuss your matter with a passionate and knowledgeable lawyer who can advise you on the best steps forward.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at
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