There are many pitfalls to avoid when planning your estate and drafting a Will. In this series of articles, we have highlighted a few of these pitfalls, so that our readers may be better equipped to sidestep them when the time comes to prepare or revise a Will.

Make sure you have very rational and documented reasons for excluding a spouse or child from your Will. Otherwise they can contest it in court and possibly win. A good Estate Planning lawyer can help you to transfer all your assets without the use of a Will and thereby completely eliminate the possibility that a disgruntled family member can sue your estate. Same results – no fighting.

Disinheriting an Adult Child

Most provinces in Canada have some form of “dependants relief legislation” which allows “dependants” to challenge a Will if they feel they have been disinherited. British Columbia is no exception and here we have the Wills Variation Act which dictates who can challenge a Will and in what circumstances.

The heart of the Wills Variation Act is plainly set out in section 2, which states:

“… if a testator dies leaving a Will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the spouse or children”.

The definition of “spouse” in the act includes common-law partners and same-sex partners. You must have lived with your “spouse” for at least two years in order to qualify. If you are still married, but have separated, you do fall into the definition of “spouse”. However, once divorced, you are no longer a “spouse” for the purposes of this Act. Because an individual can have both a common-law spouse and a separated married spouse, it is possible for two spouses to apply under the Act with regards to the same Will.

Note that grandchildren are not eligible to apply for relief. Children can apply, whether they are born inside or outside of marriage, as can adopted children. Stepchildren, however, are not eligible.

When an estate is sued by someone who believes they deserve more, the estate is frozen until either the matter is resolved in court or all parties come to an agreement. This can take years.

In what circumstances will the courts allow an adult child to successfully challenge their parent’s Will?

The Supreme Court of Canada, in Tataryn v. Tataryn, has decided that the courts can look at both legal and moral obligations when deciding whether somebody has made adequate, just and equitable provision for their spouse and/or children. One’s legal obligations are relatively straightforward – essentially, this boils down to what a spouse could expect to gain from a divorce, and similarly, what kind of support one would be legally required to provide to one’s children.

However, the Supreme Court went further than this and stated that the spouse and children were entitled to all that “a judicious person would do in the circumstances, by reference to contemporary community standards.” Furthermore, the court stated that “a small gift may be adequate, but not proper if the estate is large.”

What brings forth a moral duty to provide for an adult child?

• Disability on the part of the child
• An assured expectation on the part of the child, arising from the abundance of the estate or from the adult child’s treatment during the testator’s lifetime
• The present financial circumstances of the child
• The probable future difficulties of the child
• The size of the estate

Why do you want to disinherit an adult child?

Some common reasons for disinheriting an adult child are as follows:

• The child is estranged
• The child is financially well off, your other children are not
• You have already given this child significant assets
• The child has a drug or alcohol problem
• The child has problems with creditors
• The child has a disability and you do not want any current or future disability benefit payments to be cut off

For many of these scenarios, there may be options available that meet your concerns without disinheriting the child completely. For example, in the case of a child with a drug or alcohol dependency, or a child receiving disability payments, a discretionary trust in favour of that child may be a better option than total disinheritance. A good estate lawyer can suggest these options, help you make your decisions and create the appropriate tools to carry out your wishes.