British Columbia’s highest court has said that a person’s will is their last opportunity to do right by their family members, and BC courts regularly vary unfair wills on behalf of spouses and children who find themselves disinherited. The Wills, Estates and Succession Act provides that if a will-maker dies leaving a will that does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, then the court may change the will to make provision for the spouse or children that it thinks adequate and fair in the circumstances. It ensures that loved ones can not be disinherited without adequate cause.
The obvious issue is, if a disinherited spouse or a child can apply to vary a will, then who is a spouse and who is a child for the purposes of having a will varied?
Under BC’s law, a spouse is one of two people who are either married to one another, or have lived in a marriage like relationship for at least two years. Of course, this includes same sex couples. However, people cease being spouses when they separate. This means separated spouses who are disinherited cannot challenge their former partner’s will. So when does separation occur?
Separation occurs when one spouse communicates they intend to separate permanently, or they take action that demonstrates they intend to separate permanently. This means that people may be legally separated even if they continue to live under the same roof.
Importantly, spouses are not considered to have separated if, within one year of their separation they begin to live together again, the primary purpose for doing so is to reconcile, and they continue to live together for one or more periods, totaling at least 90 days. That defines spouse for the purposes of estate litigation, but what about a child?
A disinherited child, including an adult, and even a financially independent adult, can challenge their parent’s will, as well. A child under this legislation means a natural birth child, an adopted child or a step-child that has been adopted by the step-parent. Disinherited step-children who have not been adopted cannot challenge a will under BC law.
If a will is not challenged within 180 days from the date the court issues the grant of probate, the right to challenge the will by those disinherited is typically lost. The grant of probate is the formal certificate given by a court that certifies that a will has been proven, validated and registered and which, from that point on, gives the executor the legal authority to execute the will. Again, a will challenge must be filed within 180 days of the court granting probate of an unfair will.
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