Dealing with the passing of a family member, especially a parent, is a painful and emotional process. What can make this process even more difficult is finding out that you were not included in their Will, and therefore are not able to collect any inheritance, property or keepsakes.
If you feel that you were unjustly removed or left out of your parent’s Will, you may be wondering if there are any legal actions that you can take to obtain what it rightfully yours. It is not uncommon for a child to contest their parent’s Will. British Columbia’s Wills, Estates & Succession Act states that the testator (the deceased) does have, to an extent, an obligation to support their spouse and children. Because of this, there are instances where a child can successfully challenge a Will — and whether or not they will be successful is very dependent on the situation.
It’s important to consider whether or not contesting the Will is in your best interest. There will be legal fees involved in the often lengthy and emotional process, so ensure that you are ready for the challenge, have a strong case and that the potential inheritance would more than cover the costs before moving forward. The timelines to file a wills variation claim are very short (within 180 days of the filing of the grant of probate). If you choose to challenge the Will, you will want to consult with a professional Wills and Estate Litigation lawyer to build your case as soon as possible.
Here are some situations where you may have a case to contest your parent’s will.
You are a financial dependant of the testator
If you are able to prove that you are a financial dependant of the testator, you may have a case to challenge the Will. This includes minors, those with a disability, or adults who can otherwise prove financial dependency.
You have a ‘moral’ claim to the Estate
In the leading case on Wills variation claims, Tataryn v. Tataryn, (1994) 2 S.C.R. 807, McLachlin J clarified the moral duty of a testator to make proper provision. She wrote that the question of whether a testator has acted judiciously as a parent or spouse should be measured by an objective standard taking into account both the prevailing societal legal and moral norms.
The moral duties of a parent are found in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (p. 822). Provided the size of the Estate permits, some provision for children (including adult independent children) should be made unless the circumstances of the case would negate such an obligation.
You have reason to believe the Will is not valid
There are several reasons why a Will may be considered invalid. If you feel that the Will was created under duress or coercion, that the testator was not of sound mental capacity, or that some fraudulent activity took place, you may have a right to contest it.
While contesting a Will can be a challenging process, it is important that you receive the inheritance rightly owed to you. At FH&P Lawyers, our experienced Wills and Estate Litigation Lawyers understand this emotional journey and are here to assist you every step of the way. Contact FH&P Lawyers for more information about your rights.
How do I determine who will be my child's guardian?
There are often challenges when someone dies without a Will, but it can be particularly problematic if the person who has died is a parent and guardian of a minor child.
Drafting a Will - Do's and Don'ts
Writing a will is an essential step to planning the future of your assets, as well as ensuring your family and loved ones will always be taken care of. Wills allow you to maintain control of what happens to your life’s earnings. This could mean assets with monetary value, such as real estate, bank accounts, and businesses, but it could also mean things of sentimental value, such as family heirlooms and pets. Wills allow you the agency to appoint who you believe is the best fit to take care of your belongings after you pass. This gives clarity and ease of administration to your loved ones. When you make a will, you ensure that you decide what happens to your assets, as opposed to the government. It gives you the peace of mind of maximizing the number of belongings you have going to beneficiaries. When writing a will, one must take concise action and take numerous things into consideration. As such, we at FH&P have compiled a list of a few Do’s and Don’ts to help with the process:
Estate Grants: Grant of Probate
Probate is a process through which the court validates the authenticity of a will. Once the process is complete, the court issues a Grant of Probate. A Grant of Probate allows institutions to verify they are dealing with the right executor and the will presented is the correct will. Not all wills need to be probated