COLUMN: When your last will is not the last word

So, you’ve made your will and are comforted in knowing that your estate will be distributed the way you want it to be.

  • Feb. 5, 2012 5:00 p.m.

Legalease by Brian Loughlin

So, you’ve made your will and are comforted in knowing that your estate will be distributed the way you want it to be. This is not always so.

In some instances in B.C., the court can change the disposition of an estate, under the Wills Variation Act.

While we have experienced many different scenarios, a common example of a wills variation case arises as a result of divorce and a second marriage. For example, a couple with children divorces and the husband then remarries and raises a second family. He may have little or no contact with the children of the first marriage. On his death, his will may provide only for his second family. The Wills Variation Act allows the children of the first marriage to start court proceedings and hopefully share in their father’s estate.

If you think you can just leave a small amount to a spouse or child so they will have no claim against your estate, think again. A small bequest in a will may not prevent a spouse or child from successfully varying the will. If a person dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the deceased’s spouse or children, the court may order that a redistribution be made out of the deceased’s estate that it thinks is adequate, just and equitable in the circumstances.  A deceased who went through a number of relationships might have more than one spouse, since the act recognizes both marriage and common-law relationships.

There is no specific formula that a judge might use to establish redistribution. Moral obligations are a consideration; that is, what is a reasonable expectation of what a reasonable person would do based on contemporary community standards?

Those standards have varied over the years and will continue to evolve. Fifty years ago, an interracial marriage or same gender relationship would have been adequate grounds to exclude a child from the estate, but not today.

The relationship of the deceased to the spouse or child seeking to vary the will is also a factor. There may be perfectly valid reasons to exclude someone from the will, such as a child who has led a criminal lifestyle.

On the other hand, a divorce may have led to bitter feelings and alienation between the parent and the child. Depending on the circumstances this would not necessarily prevent a child from a successful challenge under the act. The size of the estate is also a consideration; it may not be large enough for a judge to order a redistribution of the estate.

There are often perfectly legitimate reasons to exclude a spouse or child from the estate, and those reasons can be set out in the will or an ancillary document. An experienced estate planning lawyer can assist you with preparing your estate, making it difficult or impossible to challenge it.

Brian Loughlin is a partner with RDM Lawyers.  He practices in the areas of wills and estates, estate planning, and business law.