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.
Moral Obligations When Writing your Will - Contemporary Standards of B.C.
In most cases, a will-maker has testamentary autonomy, the complete freedom to dispose of one’s estate as they see fit. However, certain situations necessitate the involvement of the court to override the wishes of the will-maker. When drafting your will, what moral obligations do you keep in mind? Do strained social and familial ties serve as enough of a reason to cut certain people out of your will? If the reasons are seemingly discriminatory, (such as based on gender, race, sexuality, social class, or otherwise) does the court have the discretion to decide on your behalf? To understand the extent of your autonomy in your will, it is highly beneficial to understand the bounds of contemporary community standards in BC court.
Estate Grants - Administration
An estate grant of Administration is a grant by the Supreme Court appointing an individual to act as the administrator of the estate. This grant is typically necessary if the deceased dies without a will (intestate). A Grant of Administration gives an administrator the official right and recognition to act on behalf of the estate.
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.