Preparing a will is a daunting subject. When it comes to the question of whether a parent is required to provide for their child in their will, the answer is far more complex than a simple ‘yes.’
In British Columbia, the Wills Estates and Successions Act (WESA), introduced in 2014, plays a pivotal role in governing affairs after someone’s passing. One significant aspect of this legislation is the provision for children to apply for variations to their parent’s will if they feel they have been inadequately provided for.
Under BC law, the answer is yes. Parents have an obligation to ensure proper maintenance and support of their children that extends even beyond the grave. This makes is imperative for parents to consider their children’s welfare when drafting their wills. A parent’s failure to provide for their biological child can lead to a wills variation claim, a legal mechanism that empowers children to dispute the will.
Common scenarios where wills variation claims arise include situations where an independent adult child is unhappy with the way their parent’s assets have been distributed. This dissatisfaction may stem from receiving less than their siblings or, in some cases, being completely excluded from the will.
The landmark case of Tataryn v. Tataryn Estate (1994) 2 SCR 807 laid the foundation for this legal principle. It highlighted the intricate balance between two competing interests: the statutory objective of ensuring just and equitable provisions for surviving children (the moral obligation) and testamentary freedom – the freedom to dispose of or allocate your estate as you wish.
Often, the moral obligation that the parent owes to their child outweighs the testamentary freedom. This means that parents must consider the welfare of their children when distributing their assets, and in the absence of compelling reasons for unequal distribution, there is an expectation that children will share equally in their parent’s estate.
In the 2003 case of Ryan v. Delahaye Estate, it was further emphasized that children sharing equally in a parent’s estate is the default position, reinforcing the significance of the moral obligation.
Navigating the complexities of wills variations and the moral obligation can be challenging. The key takeaway is that parents are, indeed, required to provide for their children in their wills. However, this requirement is not solely a legal one but also a moral and ethical one.
To ensure a fair and equitable distribution of assets and to minimize the risk of wills variation claims, it’s essential to seek professional legal advice when drafting a will. Consulting with an experienced lawyer can help strike a balance between the person’s testamentary freedom and the moral obligation to provide for their children, creating a will that reflects their wishes while protecting their loved one’s interests.
If you have been disinherited or received an unfair distribution of an estate, our Estate Litigation team is here to help.
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