In general, a will-maker is free to leave their estate to whomever they want. However, the law in BC requires that the will-maker adequately provide for his or her spouse and children through the will. This includes independent adult children. A spouse or child can apply to court for a share of the estate that is fair in the circumstances. This is called a wills variation claim.
The court considers a number of factors in deciding whether or not to vary a will:
- legal and moral obligations of the will-maker to their spouse and children,
- the value and nature of the estate's assets,
- the financial circumstances of the spouse or child challenging the will,
- the financial circumstances of the other beneficiaries,
- the character and conduct of the spouse or child towards the deceased, and
- the extent the spouse or child was financially dependent on the deceased.
The court looks at factors specific to adult children, including:
- the child’s reasonable expectations,
- the child’s character,
- the relationships between parties,
- unequal treatment of children, and
- the will-maker’s reasons for leaving the child out of the will.
The executor must notify certain people of their intention to apply for probate, including anyone entitled to bring a wills variation claim. In addition to notice in the proper form, the executor must send a copy of the deceased's will.
Any wills variation claim must be started within 180 days of the representation grant being issued. A copy of the initiating pleading (usually via a legal document called a “notice of civil claim”) must be served on the executor within 210 days of the date the grant was issued.