AlexAnney

A common dilemma in estate planning is the balance between providing financially for a new spouse, while leaving an equitable inheritance to children or grandchildren of a previous spousal relationship. While the laws in British Columbia can ensure that your well-considered estate is distributed in accordance with your Will, the terms of the Will - once known by those affected - can develop into a contentious affair and divide rather than unite a family, at a time when emotions already run high.

Consider the following scenario: Jeremy passed away suddenly, leaving a Will that named his spouse, Penny, as executor and sole beneficiary of his estate. Jeremy had been previously married and had fathered a daughter, Theresa. After a bitter divorce, Jeremy moved out and left Theresa in the care and custody of her mother, who later remarried. Jeremy initially visited his daughter regularly, but the animosity between him and his ex-wife caused many arguments. Jeremy eventually decided that it was harming more than helping Theresa to see her birth parents constantly fighting. His visits became more increasingly infrequent until he had no contact with Theresa, although he continued to make regular child support payments until she was 19 years of age.

Shortly after Theresa turned 21, she sought out her father. She and Jeremy re-established their relationship over the six months prior to his death. Jeremy also tried to foster a relationship between Theresa and his second wife, Penny.

Jeremy and Theresa grew close. Jeremy mentioned to Theresa that he was sorry that he hadn’t been there for her during her teenage years, and that is was his intention to leave her some money in his Will to make up for his absence. The relationship between Penny and Theresa, however, was somewhat strained. Penny wasn’t thrilled about having to suddenly play the role of step-parent, and Theresa found it overwhelming to have both a new relationship with her father and a new step-mother as well. Penny began avoiding both Jeremy and Theresa when they were spending time together. As a result, she did not overhear Jeremy’s promise to name his daughter as a beneficiary in his Will.

Six months after their reconnection, Jeremy unexpectedly succumbed to an illness that claimed his life. He had not yet visited his lawyers to add Theresa as a beneficiary of his Will. Theresa felt hurt and abandoned all over again, coupled with being a disinherited child. Penny was unsympathetic. She felt that Theresa has really only truly “known” her father for six months, and that she was suddenly expecting far more than she deserved. Penny also did not believe Theresa’s story about how her father had made her a promise. As the grieving widow, Penny firmly believed that she alone deserved to be the sole inheritor. However, disinherited children are often left with emotional scars from what can be perceived as a wounding blow from a parent’s last wishes. At the urging of her birth mother and stepfather, Theresa sought legal advice to ascertain whether or not she had a valid estate claim and a right to the inheritance her father had promised her.

In BC, if a spouse or child of a deceased person feels they have been inadequately or unfairly treated, the Wills, Estates and Succession Act, or WESA (formerly the Wills Variation Act), is the legislation that determines the validity of Wills and estates. WESA provides grounds upon which a Will can be varied. This right to challenge a Will is held only by a spouse or child of the deceased.

In the case of Jeremy and Theresa, as Theresa’s stepfather had not legally adopted her, Theresa had the right to make a claim to her father’s estate.
In British Columbia, the Wills, Estates and Succession Act has created a vehicle by which the court, in its discretion, may make adequate provisions for the maintenance and support of spouses or children of will-makers who may otherwise have been unfairly excluded in the estate. It is equally important to remember that the law asserts that the will-maker has no legal obligations, so challenging a Will can be a very detailed and complex issue.

In cases where a child’s exclusion from the estate is challenged, the Canadian courts will usually consider two factors:

(1) Legal obligations of the will-maker to her/his spouse or child

These legal obligations will vary depending on whether the child is an independent adult or a minor. With regard to the claims of an independent adult child, Canadian common law has found that the will-maker will not generally have a legal duty to the child unless that child contributed to the estate. On the other hand, if the child is a minor and legally requires child support (and if the Will doesn’t satisfy this obligation), the will could be considered invalid.

(2) Moral obligations of the will-maker to her/his spouse or child

A will-maker has a moral obligation to provide for their spouse and all of their children in their Will, in a manner that is “adequate, just and equitable.” Historically, estrangement regularly sufficed as a reason to negate the moral duty of a parent towards a child. The judicial trend now is to establish the roles and responsibilities that the will-maker played in the estrangement and disinheritance. Negation of the moral duty of the parent becomes unlikely if it is established that the parent played a large role in the breakdown of the relationship with the child. This gives the child a fair right to challenge the will and its distribution of the estate.

That said, the will-maker’s moral obligation is not carved in stone. A will-maker may have a good reason to disinherit an adult child or to distribute assets to siblings differently, for example, if a particular child has ignored or mistreated the will-maker. In such a case, the Court may find the will-maker was justified in his or her decision and the Will will be upheld.

Before ruling to vary a Will, the Court will consider a number of factors in an estate claim, including the size of the estate, whether assets were transferred to a child by the will-maker when he or she was still alive, and the relative financial positions of the successors. In Theresa’s case, the factors that the court would consider may include the personal and financial circumstances of the parties and the nature of their relationship, including the factors outlined above.

Helpforme’s strength lies in understanding both the laws that protect a will-maker’s right to distribute assets according to their wishes and the laws that permit a child or spouse of the will-maker to challenge the fairness of the distribution.

With Helpforme, you will have an Estate Litigation lawyer to lead you through the complexities of estate litigation. Sensitive and personal situations, and evidence, require diplomatic and expert handling. In some situations, Helpforme works with estate litigation mediators to provide an alternative to the courts. Using options like this can bring families back together — which is the best possible outcome for all.