Morgyn Chandler

Guest column: Inheritance under BC Law, Part II — Children & Spouses

A will-maker must fulfill any legal and moral obligations to his/her children

Legal information provided by Morgyn Chandler, Partner, Helpforme Personal Legal Services. The following is the second of a three-part series of articles on Wills & Estate Planning and Estate Litigation to provide you with an understanding of how inheritance is handled under the law in BC. We are proud to have served the Cowichan Valley community for 20 years.

According to B.C. Law, specifically the Wills, Estates and Succession Act of British Columbia (known by the acronym “WESA”), a will-maker must fulfill any legal and moral obligations to his/her children, including the responsibility to ensure that all of his or her children are provided with adequate maintenance and support after their death.

If a will-maker dies leaving a will that does not make adequate provision for their spouse or children, the court can redistribute the assets in a way that is adequate, just and equitable.

Disinherited Children

If an adult child receives nothing or an unfair portion in their parent’s will, they may apply to the court to have the assets redistributed so that they are provided for. To vary a will, you must be an eligible applicant under the Wills, Estates and Succession Act. This includes:

• The surviving spouse, of the same or opposite sex;

• The common-law spouse (in a marriage like relationship for at least two years prior to the death, including same-sex); or

• The child of the will-maker, including adopted children but not step-children.

For the court to accept that a will disinheriting some or all children is valid, the will must clearly express the will-maker’s reasons for not making adequate provisions for children. If the disinheritance is challenged, further evidence may be required to show valid reasons why a child was left out of a will, such as evidence of estrangement that was the fault of the disinherited child. The court recognizes that estrangement can result from a variety of factors including separation of the parents, or a loss of custody of a child by a particular parent.

A long period of separation, abandonment or estrangement between a child and the will-maker may be sufficient reason to negate a will-maker’s moral duty to an adult child. Strong evidence of a contentious relationship may include a parent being physically harmed by a child.

Previous Marriages and New Spouses

One of the most common estate litigation scenarios we’ve seen is when a new wife inherits the decedent’s full estate. When a divorced individual marries a new spouse and then makes a new will, they often leave all or most of their estate to their new spouse, at the expense of the children of the previous marriage. The new spouse has no obligation whatsoever to the decedent’s children from a previous marriage. In this scenario, the children do not have the right to contest the new spouse’s will and to request that it be varied to make fair and adequate provision for them.

Another common estate litigation scenario is when an individual gets married without making a new will. When they die, their new spouse may find that an old will leaves everything to the decedent’s children from a previous marriage, or to friends or charity, without making any provision for the new spouse whatsoever. In this case, the spouse has the right to contest the will and to request that the will be varied. They would have to prove they were living in a “marriage-like” relationship for at least two years, but if that is the case, then they have legal grounds to make an estate claim.

One of the most important things to remember in any wills variation case is that there is a time limit of 180 days from grant of probate to bring a claim. If you are considering bringing this type of estate litigation claim, you must take action within the time limit.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or consult a lawyer.

Next issue: Inheritance under B.C. Law, Part III – Challenges to your Will

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