A parent may want to leave their child out of their Will. A parent may wish to leave a more significant share of their estate to one child over another. Or a parent may leave their entire estate to their second spouse who in turn intends to leave their estate to their children from a first marriage.
Can a child contest a Will if in these situations? The answer is yes. A child can contest an otherwise valid Will if they are cut out entirely or left a disproportionately small share of their parent’s estate.
There are major personal, financial, and practical concerns when it comes to estate planning—especially when a Will maker intends to disinherit a child. A Will that excludes a child is more susceptible to being challenged after the will maker’s death. Time-consuming estate litigation and costly legal fees can take a deep emotional toll, destroy relationships, and cause lasting bitterness among surviving family members.
Here is what to know about disinheriting a child and what that child can do to contest an unfair Will if they are left out.
A Will is a very important legal document. Among other things, it provides the will maker with the opportunity to express their final wishes for the distribution of their property. Estate law in Canada recognizes and protects the principle of “testamentary freedom,” which is a person’s right to deal with their estate assets as they see fit.
Generally speaking, if a parent wants to cut an independent adult child out of their Will, they have the right to do so. However, a parent who wants to disinherit a financially independent adult child should seek legal advice. The reasons for disinheriting the child should be well documented (estrangement, rift in the relationship, previous gifts or financial assistance already given to that child, etc.) to prevent against attacks on the Will, and steps can be taken to eliminate allegations of undue influence or lack of mental capacity.
When a Will is challenged, BC courts give a high degree of deference to the will maker’s testamentary freedom. However, the courts can interfere with testamentary freedom where provision in the Will is outside the range of options that satisfy the will maker’s legal and moral duties to certain people (see below for more on those concepts).
Unlike other provinces, British Columbia has legislation in place that allows a court to vary a Will to redistribute assets so that a disinherited child or spouse receives a just and adequate portion of the estate. This is called a wills variation claim. Section 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”) is the source of the right to ask the court to vary a Will in BC.
The child of a will maker can challenge the Will in court after their parent’s death if they feel the Will failed to make adequate provision for their proper maintenance and support. The court has the power to vary the Will to make provision for the claimant it considers adequate, just and equitable in the circumstances.
Testamentary freedom should only be interfered with where provision in a Will is outside the range of options that satisfy the will maker’s legal and moral duties:
In all cases, there will be a number of ways of dividing an estate which are adequate, just and equitable. If the will maker has chosen an option within that range, testamentary freedom should not be disturbed. If will maker has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, the court can intervene to “re-write” the Will in favor of the claimant in a manner it thinks adequate.
If you are considering contesting a Will, an estate lawyer can help you to decide 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.
Only the spouse or children of the deceased have the right to bring a will variation claim under WESA‘s. 60. Let’s look at who qualifies as a will maker’s spouse or child for a will variation claim.
“Spouse” in this context means a legally married spouse or a common-law spouse. The definition of spouse in WESA includes two people who have lived in a “marriage-like” relationship of for at least two years immediately before the death of the first spouse.
“Child” in this context means legally adopted child or biological child, whether born within or outside of marriage. A stepchild of a deceased person does not have the right to bring a will variation claim, but may be able to challenge the Will on other grounds (depending on the circumstances, several grounds may apply, such as fraud, undue influence, lack of testamentary capacity).
A deceased person’s adopted child or biological child has the right to ask the court to vary their parent’s Will, regardless of their age. In other words, even adult children of the deceased can bring a wills variation claim.
Generally speaking, if the size of the estate permits, and in the absence of circumstances negating the existence of a moral obligation, some provision for adult children should be made, but the moral obligation to adult children does not typically outweigh the moral obligation to provide proper maintenance to a surviving spouse or dependent children (i.e., minor children or children not able to be financially dependent for other reasons such as disability). It will depend on several factors, including financial circumstances, family circumstances, and what a “reasonable will maker” would be expected to do in a similar situation.
There are many BC court cases brought by children who are disinherited or treated unfairly in their parent’s Will. Here are some examples and important principles from real-life BC court cases:
Challenging Wills can be a complex and emotionally draining process. The stress of legal action is compounded when the issues are deeply personal and involve close family members. It’s extremely important to get legal advice before proceeding. Onyx Law Group has the experience and knowledge to help you through the process of contesting a Will in BC.
We choose to be a place of support for our clients while providing competent and passionate legal advocacy.
If you are considering contesting a Will in BC, contact an estate lawyer at our firm today for clear advice and a legal opinion on whether you have the grounds for a successful challenge. Our estate planning and estate litigation lawyers seek equitable solutions for you, and we stand by you through the process.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at
The information on this website is for general information purposes only. Nothing on this site should be considered legal, financial, tax, medical, or any other professional advice.