It is estimated that only a fraction of Canadians have wills. Although the cost of preparing and executing a proper will is, in most cases, under $500, many families have never given the matter proper consideration, and die “intestate”.
Without a will, the affairs and assets of the deceased are governed and divided by legislation.
Unfortunately, not every will is valid. Many wills (particularly “home-made” wills) fail to properly provide for family members. Under British Columbia law, a will that fails to adequately provide for a spouse and/or children can be challenged, in court, under the Wills Variation Act.
That Act permits the Court to adjust the will to insure fairness, based on moral and legal grounds. The relief is also available to “common law” spouses.
Variation Act. That Act permits the Court to adjust the will to insure fairness, based on moral and legal grounds. The relief is also available to “common law” spouses.
The Act does not specifically say what “adequate provision” means. Instead, courts are compelled to ascertain what is just and proper in all the circumstances. Although inequality in the division of the estate amongst several children may be unfair, being “forgotten” or entirely omitted from an estate often will.
Sometimes, a testator (the deceased) will have genuine and legitimate reasons for providing unequal benefits to various children. In some cases, that’s because one child has had the preferential benefit of gifts or loans during the lifetime of the deceased. In these cases, the testator may have left a greater share to the child who didn’t have those “inter vivos” gifts or loans, to offset any unfairness that would otherwise occur. Other times, the estate is divided unequally because of concerns about health, education, spending habits, or other considerations. If the provisions for unequal division are properly worded and documented, these provisions can be unassailable.
The reasons for a disproportionate division are many. If the inequality is significant, reasons for that should be set out in the will or a memorandum or other instrument (to provide “proof”, after the testator is gone). The reasons should, however, be rational and objectively sensible. Cutting a child out of a sizeable estate because the child smoked, or was gay or lesbian, for instance, would invite a court variation. On the other hand, a disinheritance based on a history of drug abuse by an estranged adult child may survive scrutiny. A troubled relationship between a parent and child will typically not justify an exclusion, particularly if the child has needs.
When “adult children” are “cut out” of an estate, other considerations apply. A close and careful review will also be merited where a testator has provided handsomely for a common law spouse, at the expense of needy children.
If a parent or spouse has failed to adequately address your needs in a will, early advice is key. The legislation permits a review by the courts only if action is commenced within six (6) months of probate. A failure to promptly inquire of your rights to entitlement may mean disappointment.
