A will-maker has both a moral and legal duty to give fair consideration to their spouse and children when preparing a will. Unfortunately, this duty is not always followed and as a consequence, it is possible for a surviving spouse or child to be effectively cut out of a loved one’s will.
In British Columbia, the Court is given broad discretion under the Wills, Estate and Succession Act (WESA) to vary a will in cases where a spouse or child of a will-maker has not been adequately supported within a will, or has been disinherited completely. In such a case, the Court can vary the provisions in a will in a manner that it believes to be just and equitable.
The question of whether a will-maker has made fair consideration in his or her will for the proper maintenance and support of a spouse or child depends on the facts of each circumstance. The court can take into account a number of factors when deciding to vary a will including, but not limited to, the following:
- The size of the will-maker’s estate;
- The nature of the will-maker’s relationship with the spouse or child;
- The actual needs of the spouse or child;
- The contributions of the spouse or child to the will-maker’s life; and
- The will-maker’s intentions and reasons for making his or her will.
The WESA provides a very short window of opportunity for a wills variation claim to be made. Wills Variation claims must be brought within 180 days of the will being granted probate by the Court.
If you believe you have been unfairly disinherited, it is important to seek legal advice from one of our estate litigation lawyers as soon as possible. Failure to contact us in time may cause your limitation period to lapse and seriously jeopardize, or even bar, your claim.