The Wills, Estates and Succession Act of B.C. contains provisions to enable you to challenge and change a will of a deceased person if you, as a spouse or a child feel you have been unfairly left out of it. In such cases, the court may order that the will be amended by including a provision that it thinks is adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
In the most recent cases, the following considerations have been accepted as informing the existence and strength of a testator’s legal or moral duty to surviving spouses or independent children:
• relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
• size of the estate;
• contributions by the claimant;
• reasonably held expectations of the claimant;
• standard of living of the testator and claimant;
• gifts and benefits made by the testator outside the will;
• testator’s reasons for disinheriting;
• financial need and other personal circumstances, including disability, of the claimant;
• misconduct or poor character of the claimant;
• competing claimants and other beneficiaries:
These considerations tend to overlap and are not approached in isolation as independent, air-tight categories.
It is also necessary to note the legal principles applicable to wills variation claims by estates. In that regard, death does not disentitle an estate to relief, but it is a circumstance that may be considered in determining what is just and equitable.