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It’s fair to say that most British Columbians assume it is our inalienable right to draft a will and bequeath our possessions to family, friends, loved ones and charities as we see fit.

We also have a reasonable expectation that our last wishes will be carried out exactly as we set them down on paper in our will.

As a result of this deep-seated belief, discussion in public forums on the topic of estate disputes often raises questions.

Who speaks on behalf of the deceased in an inheritance dispute? Who protects their rights?

These questions are an emotional reaction to a common misconception about estate disputes, litigation and the law in B.C. While there are indeed laws in this province which allow the court to modify a will after a person’s death, this doesn’t mean your wishes would or could simply be ignored, overturned or discounted altogether.

The court owes a responsibility to you with respect to your wishes, as well as to the well-being of your immediate family. The answer to the questions about who protects your testamentary freedom and speaks on behalf of the willmaker is – the court.

The court does not permit the last wishes of a willmaker to be easily altered. It is very difficult to have a will varied in BC, and the courts can only do so in very specific circumstances – and where correcting injustice is the sole purpose.

The will must comply with the law in BC

  • Children and spouses can only be disinherited provided there is a sound rationale, justified cause, and proper estate planning in place to protect the surviving spouse and children.
  • If not, biological and adopted children can challenge distribution of assets in a will.
  • Married or common law spouses can challenge distribution of assets in a will.
  • Grandchildren, ex-spouses and stepchildren cannot challenge the distribution of assets under a will, nor can aunts, uncles, cousins and other relatives.

It’s the court’s job to ensure a will is not unjustly biased, for example, by favouring sons over daughters, or where a child is treated unfairly on the basis of their sexual orientation.

Courts will rarely uphold a disinheritance when minor or dependent children have been disinherited, as these actions do not meet the minimum requirement for adequate provision. Spousal disinheritance is also rarely upheld for the same reasons.

A married or common-law spouse (in a marriage-like relationship for at least two years prior to the death, including same-sex couples) has to be provided for.

Generally speaking, the court will prioritize this moral obligation over the willmaker’s testamentary freedom, making it very difficult for a willmaker to disinherit, limit or under-inherit a spouse. Consequently, a married spouse has a very good estate litigation claim if they have been disinherited.

A moral duty to children

The court also considers a number of factors when assessing whether or not a will-maker has met their moral duty to their independent children, such as estrangement on the part of the child (or the parent), childhood neglect or abandonment, unequal treatment of children, and lifetime gifts and benefits made by the will-maker to children outside of the will.

In some instances, pre-death gifts can fulfill a parent’s moral obligation to adequately provide for a child. However, the size of the estate and the contributions of spouses and children to that estate and their parent’s lifestyle are also taken into consideration.
For all these reasons, inheritance disputes can be quite complex and are best handled by estate litigation lawyers.

Unfortunately, there are some things we can’t remedy for disappointed beneficiaries. Promises do not an inheritance make.

If something was verbally promised to a child by a parent but was not stated (bequeathed to them) in a will, then the child has no recourse, no matter how many times a parent may have told them they were going to inherit.

In split families, a willmaker has no moral obligation to step children unless they were formally adopted, therefore a stepchild excluded from a will has no legal recourse either.

These omissions are readily addressed by estate planning and ensuring that familial changes are updated every few years in a will.

Societal, legal and moral norms

When a spouse or a child of the deceased has been disinherited in a will the reasons for the disinheritance must meet specific criteria to be considered valid, and the court will also measure the provision made in the will against what is considered to be morally acceptable in our society.

A parent cannot disinherit a child in B.C. due to their own prejudice or judgment of their child’s moral acceptability/unacceptability or life choices.

B.C. courts do not uphold wills that demonstrate sexual orientation and gender expression bias, preferential gender treatment, cultural inequities that are not societal norms in B.C. or have racial overtones.

B.C.-born children of parents who immigrated to Canada from other countries are sometimes faced with inequities in their parents’ wills. The point of view of their parents might reflect the societal norms of their parent’s country of origin, but not necessarily those of Canada.

As a result of being unfamiliar with contemporary societal standards, their parents’ Wills might not be aligned with Canadians’ reasonable expectation that children of a deceased parent will share equally in their parent’s estate.

As a result, immigrants may find their final wishes open to challenge by their children if they have not sought the advice of an estate planning lawyer to ensure their wishes are aligned with Canadian norms and B.C. law.

Cup half full or half empty?

While some may continue to feel offended that the court has the authority to vary a Will, others embrace the law for its ability to assist clients who have been unjustly disinherited or unjustly treated.

Without these laws, children and spouses would have no recourse but to suffer the whims of a willmaker and be without any recourse to seek legal assistance and right a wrong. It is often said that it’s easy to oppose a law in theory, but impossible to oppose it in practice when you need it to protect yourself.

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