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In BC, courts can rule a will unfair and have it revised – or varied– if it does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. This law ensures that spouses and children cannot be disinherited without sufficient cause, but, what about stepchildren? According to the Wills, Estates and Succession Act (WESA), a child is a natural birth child or a legally adopted child. A stepchild is not a child under WESA, unless they have been legally adopted by the stepparent.
It’s clear that a stepchild cannot vary a stepparents’ will under the WESA; however, there are ways that stepchildren can challenge a will. These scenarios can arise if:
A mutual will is an agreement made between spouses to give the surviving spouse the majority (or entirety) of their estate. Once both spouses have died, the remainder of the estate is divided between their beneficiaries according to the terms of the will. The mutual will is particularly important when stepchildren are involved – either from past relationships or future relationships (after a spouse has passed away). The primary purpose is for the will-makers to provide for their spouses while also ensuring that their estate will be passed onto their own children fairly. When one of the spouses in a mutual will agreement has died, the mutual will cannot be changed. This protects from step-children being unfairly disinherited should their birthparent die before their step-parent.
A case in White Rock, BC, Wright Estate (Re) 2012, highlights the ability of the courts to give stepchildren the proper inheritance when there is a promise broken under a mutual will. A married couple, both of whom had children from a past marriage, wrote a mutual will together. Neither of them chose to adopt the other’s children. The husband, who was significantly wealthier than his wife, specified that he would provide for his wife for the entirety of her life, give a small portion of the estate to her children, and give the remainder of his estate to his own children. The intention being that his children would be receiving a large majority of his estate.
When the husband passed away, his spouse changed the will, electing to give the estate to her children, and nothing to her stepchildren. This directly contradicted the mutual will that they agreed to while he was alive. The stepchildren sued her for the promise broken under their mutual will. At the end of the summary trial, the judge ruled that this was a promise broken, and the challenge was successful. The children were given the share of the estate that their father had intended.
This case makes it clear that stepchildren can successfully challenge a will in BC in some circumstances. If a stepchild’s biological parent has entered into a mutual will, the requests and intentions of their parent will be honoured. If you are a stepchild who was disinherited and you believe there was a promise broken under a mutual will, contact an experienced estate lawyer today.