LEFT OUT OF THE WILL??
Canadian courts have acknowledged that a testator should be free to dispose if his or her assets as he or she sees fit. However, in British Columbia, spouses and children have the right to challenge the deceased’s Will on the basis that the deceased “failed to make adequate provision” for them.
In recent years the number of contested estates has increased significantly, especially by adult children who have been disinherited. The courts have found that although there are no legal obligations to provide for adult children, there is a moral obligation if there are sufficient assets.
Conversely, if a spouse has not been adequately provided for, there is a legal obligation on the deceased to provide for a spouse and the Courts will be more likely to vary a Will in those circumstances.
Second Marriages and Blended Families
With the proliferation of second marriages and blended families, more and more people are turning to the courts for solutions.
Under the Wills Variation Act, the court has a wide discretion to vary a Will in whatever manner it thinks fit. However, the court will look at all of the surrounding circumstances, including any letters or notes the testator may have made during his or her lifetime, indicating the reasons for disinheriting the family member.
If you are a family member who have been disinherited, or don’t feel you have been treated fairly in your parent’s Will, you may want to consider challenging the Will.
If you are considering challenging a Will, an action must be brought within 6 months from the date of the grant of probate.
Could the Wills Variation Act affect your will, or a will under which you are a beneficiary?
The terms of a valid will may or may not be given effect if a spouse or child files a legal action to contest it’s terms. This is due to a law in BC called The Wills Variation Act (“WVA”).
The WVA allows a court to vary the terms of a person’s will, after his or her death, if in the court’s opinion that person (called the “testator”) has not made adequate provision for his or her spouse or child.
A “spouse” includes a common law spouse, (someone who had been cohabiting with the testator, in a marriage like relationship, for at least two years at the time of the testator’s death), and a “child” includes adopted children, and children born inside or outside of marriage, but not stepchildren.
The court may also decide not to interfere with the testator’s wishes. Evidence that the testator had good reasons for making the provisions he or she did, will be important. Such evidence can take various forms, including a written statement of explanation signed by the testator. If such a statement is produced, the court must then consider any circumstances that speak for or against the accuracy of the statement. In deciding what weight any such statement or similar evidence should be given, each case will turn on it’s own facts. In each case the court will look at the moral obligations of the testator and what is required to do achieve justice according to contemporary standards.
There is an important time limitation. An action by a spouse or child to vary a will under the WVA must be started within six months from the date probate of the Will is granted.
Not all assets of the testator are within reach of the WVA. It only potentially affects assets that are part of a Testator's estate at the time of his or her death, and it does not affect real estate which is outside British Columbia: property owned in joint tenancy with another person, proceeds of life insurance, RRSPs or RRIFs with designated beneficiaries, all of which pass outside of the estate, are not affected by the WVA.