COLUMN: Were you left out of the will?

Spouse and children of the deceased have legal options

If you have been left out of your spouse or parent’s will, or did not receive a fair distribution of their estate, all is not lost.

Under the new Wills Estates and Succession Act (WESA) a “spouse” or a “child” of the deceased can apply to the Supreme Court seeking a variance of the distribution of the estate under the will.

The Act defines “spouse” to include a legally married spouse, and a same sex or common law spouse, provided the couple had been living together for at least two years prior to the deceased’s death. “Children” include adopted children, but not step-children.

The provincial legislation specifically states that where, in the court’s opinion, a will does not make adequate provision for the proper maintenance and support of the deceased’s spouse or children, then the court has discretion to vary the will to make the provision that it believes to be “adequate, just, and equitable in the circumstances”.

The court determines this based on what would be considered fair in today’s society.

In the case of McBride v. Voth, the court reviewed the following considerations in forming the existence and the strength of the deceased’s moral duty to his or her adult independent children.

1. Contribution and expectation.

Contributions made by an individual to the deceased’s estate or care for the deceased will strengthen the moral obligation to provide for that person.  A moral duty may also arise if the deceased’s conduct created an expectation to receive a benefit.

2.    Misconduct/poor character.

A court can refuse variation to a person whose conduct or character, in the opinion of the court, is severe enough to justify disinheritance.

3. Estrangement/neglect.

The court will usually enquire into the reasons for the estrangement. If the estrangement is seen to be largely the fault of the deceased, it may support a variance to the will.  As well, the opposite is true.  If a child neglects a parent, the court can support a disinheritance.

4.    Gifts and benefits made by the deceased outside of the will.

The court will take into account other lifetime gifts or benefits a deceased may have made to claimants. For example, insurance proceeds or pension benefits which fall outside of the will may be sufficient to satisfy the moral obligation of the deceased.

5.    Unequal treatment of children.

If there are no relevant reasons for an unequal distribution, then there is a reasonable expectation that adult children will share equally, even though there is no legal obligation.

Any wills variation action is difficult for the court and the parties.  On the one hand, the court wishes to respect the wishes of the deceased and enforce the specific terms noted in his or her will.  On the other hand, a deceased who is a “spouse” or a “parent” has legal and moral obligations to his or her spouse and children, and these cannot be ignored in contemporary society.

A Wills Variation Action must be commenced within 180 days from the Grant of Probate and, therefore, it is very important to receive timely advice on these matters.  If you believe that you have been dealt with unfairly under a will, you should contact a lawyer who specializes in wills preparation or estate litigation.

– Ian MacKinnon is a partner with RDM Lawyers LLP in Abbotsford.  Ian practices in the area of estate litigation and civil litigation.  Questions or comments regarding this article can be sent to



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