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Sometimes, children are unpleasantly surprised to learn that one of their siblings is receiving a larger inheritance from their parents than they are, even though they shared a similar relationship with their parent. Feeling like they’ve been treated unfairly, they may wonder if they have grounds to challenge the will and possibly have it changed- even after the death of their parents. In BC, a will that is ruled unfair can be varied (changed) by the courts. The question is: does a will have to give equal provisions to those with the same relationship to the will-writer (i.e. children) in order to be considered fair?
In short, the answer is no. A fair will by law is one that makes the “adequate provision for the proper maintenance and support of the will-maker’s spouse or children”. This means that will-writers still have the testamentary freedom to create their will however they wish. The restriction is that they’re not able to unfairly disinherit a spouse or child. So, if you’re in a situation where a sibling is receiving more of the estate than you, there’s usually not much you can do to convince the courts that the will should be varied. The only will challenge you could make is that you were unfairly not given the adequate provision for the maintenance and support of your life, which would have to be proven in court.
For the sake of this blog post, let’s look at a simple example to help understand the principles of unfair wills. Let’s say a parent elects to give $5,000 of their estate to their son, and $150,000 to their daughter.
Using the above example, with no outside information it’s difficult to determine if this provision is unfair. The courts must look at external factors and specifics of the case to fully understand the nature of the provisions. If the son chooses to challenge the will, the courts would look at many different factors in determining whether this $5,000 is an adequate provision or not. Some characteristics and factors the courts will take into account include:
Usually, the courts will put a heavy emphasis on the beneficiary’s financial needs. If the son was working a job as a newspaper delivery boy, he could likely prove a financial need in this example and have the will varied. When a child is unfairly disinherited and is not left adequate provisions for their life, they can become more dependant on government assistance, which tax payers carry the burden of providing. The child might file for bankruptcy and social assistance which could have been avoided if they had inherited a larger share of the parent’s estate. This is the primary function of the disinheritance laws in BC today.
There are exceptions to this rule. In order for a disinheritance to be allowed in a will, there must be a reason for the disinheritance that is valid, rational and consistent with modern Canadian values. Estrangement is often a reason for a disinheritance that is allowed under most circumstances. Using the same example, if the son had run away from home at a young age and never re-entered the parent’s life, he likely wouldn’t be entitled to an inheritance and the parent is able to validly disinherit their child. If a parent is allowed to disinherit a child, this means they’re able to give as little of an inheritance to this child as they would like. In most cases, this would mean leaving nothing to the child in the will. For more information, read our blog on valid reasons for disinheriting a child.
In the end, if one of your siblings received a bit more of an estate than you, there is not a significant chance of successfully challenging the will. If the value of your inheritances are extremely different and you believe you weren’t given an adequate and fair inheritance, you may be able to challenge the will.
If you believe you’ve been unfairly disinherited by a parent or spouse, contact an experienced estate lawyer today. We will ensure you receive the inheritance that you’re entitled to – whether that means challenging the will or not.