It’s not uncommon for a parent making a Will to want to treat his or her children unequally. Sometimes there are very good reason why one child should receive more (or less) from a parent when that parent dies. Such reasons might include special financial needs (such as if a child has a disability that affects his or her earning ability) or gifts that were made during the parent’s lifetime that are being equalized through the Will.
But, in some cases, the Court will determine that a will maker’s reasons for treating his or her children unequally is not reasonable, and will vary the will maker’s Will. Variation of Wills in B.C. is accomplished under the Wills Variation Act. This Act permits a spouse (including a common law spouse) or a child of the will maker to allege that the Will does not make adequate provision for their maintenance and support. If the Court agrees, then the Court can effectively re-write the Will to provide for that spouse or child.
One of the more common reasons a will maker will disinherit a child completely is because there is an estrangement. In these cases, the Court will consider a number of factors including the reason for and duration of the estrangement, whether the will maker is “to blame” for the poor relationship, and whether the child (or the will maker) have made unsuccessful efforts to end the estrangement and have been re-buffed.
If the reasons given for the will maker’s decision to disinherit a child are not considered by the Court to be rational or are not based in fact, it’s likely that the Court will vary the Will. Likewise, if the will maker is found to be, in effect, at fault for the estrangement, or has conducted him or herself in a fashion that makes the child’s withdrawal from the relationship reasonable, or where the child has attempted over a period of time to regain a relationship with the parent but has been rejected, it’s quite likely that the Court will vary the Will to make provision for the child.
Aside from disinheriting a child by excluding him or her from a Will, a parent who wishes to treat their children substantially differently on death may use a variety of other estate planning tools such as a trust. When assets have been placed in a trust, and the trust sets out what happens to those assets on the parent’s death, in most cases the Wills Variation Act cannot be used by the excluded child to gain a share of those assets. As well, the parent may decide to make gifts during his or her lifetime to the children he or she wishes to favour. Assuming the parent is competent to make such gifts, and if they are properly documented, the excluded child will not be able to claim an interest in those assets.
For more information on this topic, contact Pushor Mitchell Partner, Joni Metherell at: [email protected] or (250) 869-1200.
