LET THY WILL BE DONE, NOT UNDONE!
Your Will will not be done if you attempt to cut your spouse or children out of your Will. If you do not provide adequate provisions in your Will, your Will may be challenged. Division 6 of the Wills, Estates and Succession Act permits an action by a child or a spouse, which includes a common-law or same-sex spouse, against your estate.
History of Wills Variation in British Columbia
The Wills Variation Act was enacted in 1920 and designed to prevent a spouse, usually the man at that time, from disinheriting his wife. At the time it was not uncommon for totally inadequate provisions to be made for a wife in the hope that children would look after her. This was not always the case, and a great deal of injustice was done. Social programs were generally non-existent in those days.
The Modern Claim
Since the 1920s the courts have extended the circumstances in which the Act, now part of the Wills, Estates and Succession Act, may be invoked, and now even a self-supporting child who does not strictly require maintenance is deemed to have a moral claim against a sufficiently large estate. The obligation to a spouse or child is based on society's reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards. Because the moral claim will end up being interpreted by a judge, the issue of who has a moral claim and what the claim should be is subject to wide variation.
Often our clients are surprised to learn there are such provisions and they cannot get around the Act by giving a bequest of $1.00 or another token sum.
An adult child may be disinherited if the reasons for doing so are valid and rational at the time of the testator's death. This validity has to be based on fact and has to be rational in the sense that there is a logical connection between the reasons and the act of disinheritance. We often tell our clients that they cannot disinherit due to suspicions of what their adult children are up to. Possible drug use or claims of immorality are unlikely to be provable as fact in a court of law. Obviously, if the child is in jail for fraud or drug trafficking, the situation is clear.
So, the facts have to provide a rational reason for disinheritance. Often we find that an adult child is disinherited due to a difference of opinion with the deceased on subject matters that are objectively unimportant, such as a difference in political beliefs. Such differences are often transitory and we have heard of cases where the person making the Will has made up with the child but, unfortunately, failed to make a new Will.
In considering what is fair, a court will consider the size of the estate, the legal obligations of the person making the Will, and what the spouse or child would have received in the absence of a Will. Being fair is not necessarily being equal, and the courts will respect an honest attempt by a testator to treat his or her spouse and children fairly. A disabled child might receive more than an equal share with other children
Where there is disinheritance with no rational reason, a court will likely order a "variance" and will also likely order that all the claimant's costs be paid out of the estate. Sixty percent of these cases are successful. Poor planning will result in unnecessarily large legal bills and family conflict, and the" black sheep" will probably get his or her bequest in the end.
Ways to avoid the provisions are:
- give assets away while you are alive, making sure that the intention of the gift is clearly expressed,
- create joint bank accounts, joint tenancies on houses, and Trusts, as long as it is clear that a beneficial transfer is made of the property (such transfers, however, usually have tax and other negative legal ramifications that must be considered),
- buy insurance products with named beneficiaries, and
- talk to a lawyer about a "reasonable" bequest under your particular circumstances, as well as your other options.
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