Under what circumstances can the BC courts alter your last Will & Testament? 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, charities, etc., 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 these 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 BC. 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 will-maker is – the court.
The court does not permit the last wishes of a will-maker to be easily altered. In fact, the opposite is true. 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.
Laws governing Wills in BC
The Wills, Estates and Succession Act (“WESA”) came into force in BC on March 31, 2014, and is the largest overhaul of Wills and Estates legislation in 100 years. Compared to earlier legislation (such as the Wills Act), the aim of WESA is to provide certainty and to make it easier and faster for people to draft Wills and have their property and assets distributed as they wish after their death.
WESA states that a will-maker has a moral duty to provide for his or her spouse and children. Yet, families will be families and since testamentary freedom exists, some people will (and do) try to disinherit their children or limit the scope of their inheritance. WESA does not make it impossible for a person to do so, provided they have a sound rationale, meet the legal test of justified cause, and have proper estate planning in place which addresses the conditions under which this is permitted. Therefore, in BC, a will-maker has this testamentary freedom to disinherit or limit the amount of inheritance, but only if he or she makes adequate provision for their surviving spouse and children, who are protected by law.
If adequate provision is not met, then the only individuals who can challenge the distribution of assets in a Will are the children (biological and adopted) or spouse (married or common law) of the deceased. Grandchildren, ex-spouses and stepchildren cannot challenge the distribution of assets under a Will, nor can aunts, uncles, cousins and other relatives.
Case law supports that the court balances the deceased’s testamentary freedom and the statutory objective of ensuring that adequate, just and equitable provisions are made for children and spouses of the deceased in a Will. However, it is the statutory objectives which take precedence in order to ensure that a Will is not unjustly biased, for example, by favoring sons over daughters, or where a child is treated unfairly on the basis of their sexual orientation.
In addition, 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. Under WESA, 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 will-maker’s testamentary freedom, making it very difficult for a will-maker to disinherit, limit or under-inherit a spouse. Consequently, a married spouse has a very good Estate Litigation claim in BC if they have been disinherited.
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 that neither WESA nor lawyers can 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 will-maker has no moral obligation to step-children unless they were formally adopted, therefore a step-child 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 BC due to their own prejudice or judgement of their child’s moral acceptability/unacceptability or life choices. BC courts do not uphold Wills that demonstrate sexual orientation and gender expression bias, preferential gender treatment, cultural inequities that are not societal norms in BC, or have racial overtones.
BC-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 BC 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 WESA for its ability to “Cure Deficiencies in a Will,” providing Estate Litigation lawyers with the means 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 will-maker 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.
In conclusion, while the court takes many factors into account when a Will is challenged, including a will-maker’s testamentary freedom, that freedom is secondary to their moral requirements for Wills in BC that ensure the basic necessities of those who live on.
For more information, please visit our Estate Litigation Q & A article at https://www.hammerco.net/estate-litigation-q-a/
If you are considering contesting a Will or have any further questions regarding estate claims, we invite you to contact us.