Left Out Of A Will Unfairly?

June 9, 2014   |   by Darren Paulsen

At Mair Jensen Blair LLP, my colleagues and I are often contacted by individuals that have had the grief of losing a parent compounded by the dismay in finding out that they have been left out of the parent’s Will ( i.e. “disinherited”). The reasons why this may have happened are diverse and often based on complex family dynamics. Sometimes the inquiry comes from someone who has been excluded from the parent’s Will, in favour of his or her siblings, without being provided any explanation for such exclusion. Others have contacted us when they have been left with a significantly smaller share of the estate than other siblings. If properly drafted, the Will may be valid and enforceable. In certain circumstances, however, a remedy may exist.

In this province the Wills Variation Act provides the framework that allows a “child” who has been completely disinherited, or inadequately provided for, to apply to Court to alter the terms of a parent’s otherwise valid Will. The Wills Variation Act allows a Court to vary a parent’s Will to provide the child with a portion, or more significant portion, of the parents’ estate. For the purposes of the Wills Variation Act, a “child” is not defined by the age of the individual, but rather by the individual’s relationship to the deceased. Both a natural child and a legally adopted child are considered a child under the Wills Variation Act. It is important to keep in mind that, in most cases, an Action under the Wills Variation Act must be commenced within 6 months from the date of the issue of probate of the Will.

If one qualifies as a child and chooses to commence an Action under the Wills Variation Act, the Action may be settled by agreement amongst the Estate’s beneficiaries. If a settlement does not occur, the Court must ultimately weigh the deceased parent’s right to choose how he or she allocated his or her estate in the Will (i.e. “testamentary autonomy”) against the deceased parent’s legal and moral obligation to apportion his or her estate in a manner that allows for “adequate, just and equitable” provision for all of his or her children. The Court will consider a number of factors in deciding whether a parent’s Will should be altered. The factors considered will depend on the circumstances of the case but the Court will generally review the value of the estate and the number of children potentially involved, as well as the age, health and financial need of those children. The Court will also give consideration to the extent to which the children benefitted from the parent’s assistance during the parent’s lifetime. Other factors that are routinely considered are whether or not a child was estranged from the parent, and the reasons for the estrangement.

Rather then applying to vary the terms of an existing, otherwise valid Will, a child (or any other potential beneficiary) may seek to challenge the validity of the Will itself. The law allows for a parent to discuss the terms of his or her Will with his or her children and to even receive recommendations from the children, as long as the parent is found to have ultimately exercised his or her own free choice in the creation of the Will. A Will is not legally binding, however, if the parent has been unduly influenced in the creation of the Will. If it is proven that the parent has been forced or somehow coerced in the preparation of the Will, the Will is invalid. Courts in British Columbia have found undue influence to exist in circumstances where one sibling has coerced the parent into either excluding another child from the parent’s Will completely, or increasing the coercive sibling’s share of the estate, at the expense of another sibling.

A Will is invalid if the Court finds that the parent lacked the required mental capacity at the time the Will was created. A Will is also invalid if the parent remarried after creating the Will (marriage revokes a Will). There are a great number of reasons why a Will may not be valid, and this article is not meant to be an exhaustive list.

If you are considering challenging a Will, it is important that you consult with a lawyer and review the details that are specific to your claim. Similarly, if you are considering drafting a Will, a lawyer can help ensure that your Will not only reflects your individual needs, but also, if necessary, withstands challenge before a Court.

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