Disinherited Spouses and Children
When you said “I Do” to your spouse, you likely believed that even after death, you would care for one another by whatever means possible. However, when your spouse died, you found out they left no support for you in their will.
In British Columbia, as a disinherited spouse or child, you can contest the will of a deceased loved one who has not left appropriate maintenance and support for you at the time of death. Klein Lawyers explains.
Challenging a Disinheritance in British Columbia
Under The Wills, Estates and Succession Act (WESA), spouses and children (biological and adopted) may petition the court to vary the terms of a will in the event of disinheritance or for inadequate provisions. The court will then determine if it is appropriate to create alternative distributions of the estate assets to provide the spouse or children with adequate share(s).
Under British Columbia law, spouses must be provided for, both legally and morally. However, adult grown children should only be given assets morally. The legal obligation for a spouse is determined by the terms of the Family Law Act.
The moral obligation is determined on the basis of personal factors like caretaker roles, finances, length of the marriage, the standard of living, etc. Due to this, the spouse’s claim for wills variation will supersede the children.
Who Can Challenge Disinheritance?
In British Columbia, any relatives may find themselves subjected to disinheritance but only the following can challenge the will:
- Child: Biological children and adopted as well as illegitimate children
- Spouse: Married spouses, common-law, and same-sex spouses
It is important to remember that if there are surviving children or spouses, only they can vary the terms of the will.
There are cases where disinheritance is valid though. Adult children can be disinherited via estate planning and the provisions of the will. But if the will is the only document that exists, an adult child can contest it.
If the testator includes valid reasons and evidence for disinheritance, such as abuse, lack of family connection, etc. The court may use this evidence to determine if the disinheritance is objectively sufficient.
Why Disinheritance May Occur
One reason disinheritance may occur is because of blended families. This is often the situation when the spouse in the second marriage is not provided for and the children of the first marriage are.
Often the testator may leave all of the assets to various individuals instead of the living spouse – even in cases where there was only one marriage that occurred and the couple remained together until death. In this situation, the spouse has the legal right to challenge the will.
Another situation is when a spouse, who believed the marriage was ending, transfers property into a trust so that the other spouse cannot access it. These transactions can also be challenged via the Fraudulent Conveyance Act.
As with any wills variation claim, the family only has 180 days from the date the court issues the grant of probate to challenge the disinheritance.
Estrangement Between Parent and Child: How to Disinherit
One of the most common reasons for disinheritance in British Columbia is when a parent and child become estranged from one another. Sometimes the estrangement is due to a bad relationship that results from the end of a marriage or a child being born out of wedlock. The estrangement, and in turn, disinheritance, is often explained by the will-maker in writing, either directly in the will and/or in a separate document.
A long-term estrangement with the will-making parent is not always the end of a wills variation claim but it does require a lawyer with the skills to handle the intricacies of the family dynamic.
Disinheritance, Wills Variation: Klein Lawyers
As a spouse or child who has been disinherited by a loved one’s estate, you likely have many questions and concerns about why they would do this to you. Though this is an emotionally challenging event, a wills variation lawyer can help you contest the will and receive the support that is rightfully yours. At Klein Lawyers, our estate litigation lawyers will review the will and navigate the legality of your claim of disinheritance.
Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.