Myth or fact?
With family, it’s always personal. Hurt feelings and disputes can arise if someone feels unfairly neglected in a will, and they’re never fun to face. But if you think your spouse or parent didn’t leave you enough, you can ask the court to re-write the will so you receive a larger share.
What you should know
A spouse or child of the will-maker can bring a wills variation claim
If your spouse or parent passed away, and you’re unhappy with what they left you in their will — or if they left you out entirely — you can challenge the will in court.
A will-maker is generally allowed to divide their property however they want. However, under the law in BC, you can challenge your spouse or parent’s will in court if you feel it doesn’t “make adequate provision for the proper maintenance and support” for you. This is called a wills variation claim. You’re asking the court to re-write the will and re-distribute the estate in your favour.
You don’t have to be married to be considered a spouse
Under estates law, you are a deceased person’s spouse if you:
were married when they died, or
lived with them in a marriage-like relationship for at least two years prior to death.
“Marriage-like relationships” include common-law relationships. In these arrangements, the two people:
needn’t have been living together
must have been in a marriage-like relationship for two years (though not necessarily the two years immediately before the deceased’s death)
Who is a spouse
There are different laws that apply in BC in different contexts. If you separated from the deceased, you’re no longer considered their spouse under estates law. So you won’t be able to make a wills variation claim. But if you recently separated from the deceased, you may still be able to recover money against the estate under BC family law. It’d be wise to speak to a lawyer if you think this might apply to you.
Children can be biological or adopted
You’re entitled to make a wills variation claim against your parent’s estate if you’re their biological child (of any age, born either within or outside of marriage). Or if you’re legally adopted.
Otherwise you aren’t. As their stepchild, for example, you can’t make a wills variation claim. Nor can you make a claim if you’re a biological child but someone else adopted and raised you. (Unless that person was your parent’s spouse.)
If you’re a friend or other relative
If you aren’t a spouse or child of the deceased — just a friend or other relative — you are not entitled to make a wills variation claim. In other words, you can’t ask the court to change the will simply because it’s unfair and doesn’t provide enough for you.
However, you may be able to challenge the will on other grounds. For example, you might claim what’s called unjust enrichment. Say you agreed to provide personal services to an older person. In exchange, they promised you a share of their estate when they passed away. But they never followed through. You may be able to claim that the estate was unjustly enriched at your expense. It’s best to seek legal advice if you think this might apply to you.
The court considers several factors when deciding whether a will is fair
If you make a wills variation claim, the court can decide to change the will if they think it’s fair to do so in your particular circumstances. The court will consider many things when making this decision, including:
the will-maker’s reasons for distributing their assets as they did
the value and nature of the will-maker’s money and property
your financial circumstances
the financial circumstances of the other beneficiaries
the nature of your relationship with the will-maker
whether you financially depended on the will-maker and to what extent
any agreements with their spouse about how to distribute their estate
any assets passing outside of the estate to you or to others
any gifts they made to you or others during their lifetime
The court considers what a reasonable will-maker would have done
What would the so-called “reasonable” will-maker have done? That’s the question the court will ask. If the will reflects irrational anger or favouritism, or ignores the genuine needs of the will-maker’s spouse or children, without good reason, the court may change the will to make it more fair. The court is looking for an “adequate, just and equitable” outcome.
“Dad and I had a great relationship — until he found out I was gay. From that point, we grew apart. He tolerated me at family get-togethers for a good 10 years or so. But since Mom died, we’ve hardly seen each other. He refused to go to my wedding, and hasn’t even met my kids (his grandchildren)! I wasn’t surprised that he left everything to my sister — there was no lifestyle to disapprove of there. But my lawyer says that my being gay isn’t a factor in today’s society that would justify Dad from leaving me out of his will.”
– Oscar, Vernon, BC
The courts have generally found that there’s a moral obligation to provide for independent adult children if there are sufficient assets. But sometimes a will-maker’s reasons for leaving their adult child out of the will are valid and rational. In that case the court may say there was no such obligation.
If an adult child with a disability is left out of the will, the court may find there was a moral and legal obligation to provide for them. Sometimes such children are left out of the estate for well-meaning reasons — a fear that the money would reduce or stop the adult child’s social assistance benefits. But that isn’t always how things go. It’s a good idea to consult a lawyer to ensure your dependent adult child gets the maximum amount of money they can.
Steps to challenge the will
Step 1. Get legal advice
If you want to make a wills variation claim, you should see a lawyer. These kinds of disputes are typically complex. A lawyer can tell you whether they think your claim will be successful. And they can guide you through the legal process.
When trying to find a lawyer to take your case, feel free to shop around. Ask the lawyer how much it will cost. You should be able to get some free estimates.
Contingency fee arrangements
Some lawyers may agree to take a percentage of any amount you receive from the estate as a result of a successful challenge. This is called a contingency fee arrangement. With this type of arrangement, a lawyer will only charge you legal fees if you win the case. Many lawyers will still require you to pay certain expenses called disbursements even if you’re not successful. The Law Society of BC has more on these types of fee arrangements.
Step 2. Consider the risks and consequences of making the claim
Even if you have a strong case, there are no guarantees. Think about the risks and consequences of making a claim.
What’s your financial situation? Can you afford to lose? Lawsuits can be expensive. Even if you win, your legal costs typically won’t be covered by the estate. So you’ll have to pay for your own lawyer. If you’re unsuccessful, the court may tell you to pay all or some of the successful party’s legal costs.
If you’re successful, will it destroy your family relationships? Inheritance is a subject that’s charged with emotion. Your lawsuit will likely name other family members as defendants. Not surprisingly, these kinds of disputes can sour relationships with siblings, surviving parents, step-parents, and other family members.
Everyone’s situation is different. Take a step back and think about your priorities before making any final decision to start legal action.
Step 3. Make your challenge before the deadline
There are legal deadlines, called limitation periods, that must be met. If you miss the deadlines, it may be too late.
To start a claim, you must file a notice of civil claim with the court within 180 days from the date a grant of probate or administration is issued by the probate registry. (The grant confirms the will is legally valid and can be acted on.) If you bring the claim more than 180 days after the grant is issued, the opportunity to change the will is likely lost. If you want to make a claim, you should talk to a lawyer immediately.
You must also serve the claim on each of the defendants within 210 days of the grant being issued. The defendants in a wills variation claim include any surviving spouse, any children of the will-maker, all beneficiaries named in the will, and the executor.
When a time limit may not apply
In general, time limitations are strictly enforced by the courts. But there are sometimes exceptions. For example, if an executor didn’t give you proper notice of their intention to apply for probate, then the limitation period may not apply. If this sounds like your circumstance, you’d best speak to a lawyer straight away.
Step 4. Consider trying to resolve the claim outside of court
When you set a court date, you typically don’t see the judge the next day. Or even the next month. Trials can take a very long time to resolve.
Even if you’ve started a wills variation claim, it may be possible to settle the dispute outside of court. This involves coming to an agreement with the other party about what’s fair. A case can be settled any time before the judge gives their reasons for judgment.
Wills variation claims are often settled at a mediation. Mediation is less formal than going to court and much less expensive. Here, we explain how mediation works. If the mediation is successful, you’ll enter into a settlement agreement, which will resolve the dispute.
What if I want to leave my spouse or child out of my will?
If you want to leave a spouse or child either nothing or less than they might reasonably expect, seek advice from an estates planning lawyer. They can help you structure your assets as you wish. They may suggest that you pass assets outside of your will, such as through joint ownership or through a trust. When someone challenges a will, they can only access estate assets. They usually can’t touch assets that have passed outside of the will. (Though there are exceptions!)
As explained here, some lawyers may suggest that you explain your reasons for leaving out a spouse or child in a separate document or letter you keep with your will. If you do this, you’ll still need to show you’ve at least considered your spouse and children and your obligation to provide for them. This doesn’t guarantee they won’t receive something if they dispute the will in court.
If you’re considering this option, speak to a lawyer.
In his will, my spouse left everything to his children from his first marriage. He left nothing for me. What are my chances of making a successful wills variation claim?
As with all wills variation claims, whether (and to what extent) the court will re-write the will in your favour will depend on the circumstances. Say you and your spouse met later in life. You’d built up your wealth independently. Each of you had your own children. You agreed that, upon your death, you’d each take care of your own children (and not each other).
Here the court would be reluctant to completely ignore your mutual wishes to exclude each other from your wills. At the same time, the obligation to provide for a surviving spouse is still relevant. Other factors the court may consider include:
the length of your relationship
when and how your spouse’s assets were acquired
your financial circumstances
your spouse’s competing obligations to their adult children from their first marriage
the size of their estate
any gifts they made to you outside of the will
any financial support your spouse would have been legally obligated to provide you (while they were alive) if you separated in their lifetime
any agreement you and your spouse had about whether you’d leave each other anything on death
whether you and your spouse shared expenses, or if one of you paid all of the expenses for both of you
Who can help
If you want to talk to someone about challenging a will, some of the options for free or low-cost legal help may be helpful.