Stepchildren Challenging a Will: Assets in Joint Tenancy Held in Resulting Trust

In BC, courts can rule a will unfair and have it revised – or varied – if it doesn’t 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 adopted by their stepparent.

It’s clear that a stepchild cannot vary a stepparent’s will under the WESA, however, there are ways that stepchildren can challenge a will. These scenarios can arise if:

• Promises are broken under mutual wills;
• Assets in joint tenancy are held in a resulting trust; or,
• There is estoppel for an estate being gifted to a stepparent.

Assets in Joint Tenancy Held in Resulting Trust

Houses are usually the largest asset in a person’s estate, and homeowners want to be sure that their homes are distributed as intended when they pass away. Joint tenancy is typically used by couples to ensure that the surviving spouse will receive the estate, without having to write a will and go through probate (the process that ensures a will is real). Joint tenancy agreements can also help to maintain continuity in the life of the surviving spouse following the death of their partner. Agreements with rights of survivorship can allow the surviving partner full rights to the property and accounts belonging to their partner – as specified in their agreement- following their death. In joint tenancy agreements, disputes can ensue over whether the property contributed by one partner to the joint tenancy was a gift, or if the property was to be held in a resulting trust following their death. In BC, there is a presumption of resulting trust – the presumption that a transfer of property is not a gift. If a property is held in resulting trust by someone, it does not necessarily mean that they own the property. Rather, that they hold the legal title of the property for the benefit of the owner. On the other hand, if the property was given as a gift, they do own the property. Unfortunately, surviving spouses sometimes try to “steal” their spouse’s estate by claiming that it was given as a gift rather than to be held in resulting trust.

Let’s look at how this might apply to a stepchild who has been unfairly disinherited. As an example a man, Alex, has a son, Ben. Alex is married to a woman, Emily, who is Ben’s stepmother. Before Alex dies, he transfers joint tenancy to Emily, intending for her to hold his estate in resulting trust so he can provide for her if she survives him. Upon Emily’s and Alex’s death, Alex wants the remainder of his estate to be given to Ben. After Alex dies, Emily decides to remarry and give Alex’s estate to her new husband. As a result, Ben does not receive any part of his biological father’s estate.

Ben decides to bring this case to court because he believes he was unfairly disinherited. According to the presumption of resulting trust, Emily’s trustee must be able to prove that Alex intended to give the estate as a gift to Emily, not to be held in resulting trust. If Emily’s trustee cannot do this, Ben should receive the estate as intended by his father.

When there is a transfer of ownership using a joint tenancy agreement, stepchildren should still expect to receive their inheritance from their biological parents. If you are a stepchild who was disinherited by a stepparent through a joint tenancy held in resulting trust, you could be eligible to challenge the will. Contact an experienced estate lawyer to ensure that you receive your fair share of the estate.

Have a question about estate disputes or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.