Disinheriting Family – Can it be done?

In 2014, B.C. introduced the Wills, Estates and Succession Act (“WESA”), which effectively opened the gates for certain categories of individuals to bring court applications to vary another person’s Will if they do not feel that they were adequately provided for by the deceased.

The only two groups of people who have standing to bring a will variation action (“WVAs”) under section 60 of WESA are spouses, which includes common-law spouses, and children. Children include biological and legally adopted children. Stepchildren are excluded unless they have been legally adopted by the deceased. This has made it especially difficult to disinherit or exclude a spouse or child, subject to few exceptions.

When a WVA commences, the court in B.C. must weigh the testamentary intention of the Will-maker and their reasons for why they gifted whom what, if anything, against the claims put forth by the spouse or child asking for the Will to be varied.

For the Court to vary a Will, the Will must be legally valid and only the terms of the Will, which governs assets that are actually distributed by the Will can be altered. Accordingly, the court cannot redistribute assets that pass to a beneficiary “outside” of the estate through a trust or designated plan, such as a registered retirement savings plan (“RRSP”).

Effective estate planning can assist in protecting assets from WVAs as much as possible through a variety of planning tools and supporting documentation. However, a person must be made aware that should they choose to leave a spouse or child out of their Will and not provide what the court would consider to be adequate, just and equitable, a WVA can be sought, and your planning may not end in the way that you had wanted.

An estate planning lawyer can work with you to arrange your assets to best prevent a WVA from happening. They can explain your obligations and the potential delay and cost that a WVA would mean.

Our estate planning lawyers at Harper Grey LLP can assist you in making these important decisions as well as all other estate related matters. Reach out to us today.