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In a previous blog we discussed who had standing to challenge an unfair will in British Columbia. In this week’s blog I want to outline the general reasons that a person who is disinherited by a will might be able to successfully challenge it in British Columbia.
Before diving into that topic however, I want to address a comment I hear from time to time, and that is why should someone who is disinherited be able to challenge a will at all? That is, why can’t a testator, that is a person whose will it is, decide, and have the final say no matter what, on what happens with their money after they are dead. It is their money after all, right? There are several good answers to this question.
One reason that is often given is that when a person does not provide adequate support for their spouse or children by disinheriting them, government services, such as disability or welfare, must support that person, and this shifts the burden of financial support from the testator to the tax-payer, which is all of us, because we are the ones who fund those services.
Not everyone may agree with that reason, but if you watch some of our other blogs and understand some of the bizarre reasons people are disinherited their family members, you may start to appreciate that perspective.
Now, on with the reasons a person who is disinherited may challenge a will. Each of these reasons will be addressed in detail in our future blogs.
The first reason is that the will is not a valid will at all. This can be the result of several reasons:
Importantly, anyone who is in a prior will of the testator, or who would be entitled to a portion of the estate if the will is not valid, can challenge the last will of someone on these grounds.
The second reason a will can be challenged in British Columbia is that a valid will may be unfair to a spouse or a child, even a financially independent adult child. By unfair I mean the testator does not provide adequately for the proper maintenance and support of that person.
We address in detail what is “adequate provision for the support and maintenance” of a spouse of child in another blog, but essentially the law looks to whether the testator has a legal or moral obligation, or both, to provide financial support, and if the will does not do so, the court can change the will.
Indeed, the court’s power to change a will in British Columbia is broad and the testator sometimes does not have the last say. I hope you have learned something from this blog. Please feel free to like us on Facebook, follow us on twitter, or subscribe to our Youtube channel to receive notice of our future weekly video blogs on the law.