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If a Child is Left Out of a Will Can They Contest It?


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.

Understanding Wills and Estate Laws: If a Child is Left out of a Will can they Contest it?

Understanding Wills and Estate Laws: If a Child is Left out of a Will can they Contest it?

Testamentary Freedom

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.

British Columbia Wills Variation Claims

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.

Legal Obligations and Moral Obligations

Legal Obligations and Moral Obligations

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:

  • Legal obligations are the duties that the law would impose on a person during his or her lifetime if the question of provision for the claimant were to arise. For example, a will maker has a legal obligation to provide in his or her Will for any minor children or dependent children. A will maker also has a legal obligation to provide adequate provision for the proper maintenance and support of their surviving spouse.
  • Moral obligations are found in society’s reasonable expectations of what a person would do in the circumstances, by reference to contemporary standards. It is a matter of balancing conflicting claims, such as claims of adult independent children and the will maker’s spouse. Where the size of the estate permits, the Will should address the moral obligations toward all beneficiaries.

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.

Eligibility to Bring a Wills Variation Claims

Eligibility to Bring a Wills Variation Claims

Only the spouse or children of the deceased have the right to bring a will variation claim under WESAs. 60. Let’s look at who qualifies as a will maker’s spouse or child for a will variation claim.

Spouse of the Deceased

“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.

Children of the Deceased

“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).

Special Note on Wills Variation Claims by Adult Children

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.

Real-Life Examples of Wills Variation Claims

Real-Life Examples of Wills Variation Claims

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:

  • A BC man successfully challenged his father’s Will, which left the majority of his estate to his second spouse. The second spouse had a Will of her own, which left her entire estate to her children from her first marriage. The will maker’s son was dutiful and helped his father in many ways throughout his life. His father always told him he’d be taken care of, so he had an expectation that he’d receive a more substantial inheritance. The court concluded that the father owed a moral obligation to provide for his adult son and increased his share of the estate.
  • The court has recognized an enhanced moral obligation to the children of the will maker’s first marriage where the will maker’s estate was built up primarily during that first marriage and the children never received an inheritance from the parent who died first. The enhanced moral obligation is supported by the reasoning that the spouse who died first would have wanted and expected the surviving spouse to provide their shared wealth to their biological children.
  • Grandchildren do not have moral claims under BC wills variation law. A will maker cannot discharge his moral obligation to his adult daughter by benefiting her children at her expense. The daughter in that court case was disabled, unemployable, and essentially destitute, barely able to meet her day-to-day expenses. She was in dire need of support and could be expected to remain in need for the rest of her life. There was no sensible, rational justification for providing her with such a small portion of her father’s estate.
  • Spite is not a valid reason for disinheriting a child. A BC woman brought a wills variation claim after being restricted to a 1% share of her mother’s estate that was worth over $1,000,000. The bulk of the mother’s estate went to two charities. There was no evidence that the mother had any particular connection with either of the charities. There was, however, evidence that the mother’s reasons for essentially disinheriting her daughter were motivated by spite. The court allowed the daughter’s wills variation claim and the mother’s will varied so that the daughter received 40% of the residue of her mother’s estate.

Need help Contesting a Will in BC?

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.

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