Listen - Legal Matters - Contesting A Will

A will-maker is generally allowed to divide their property however they want, after all it is their stuff and their will. However, under the law in British Columbia, a spouse or child of said will-maker can challenge or contest the will in court if they feel it leaves them without adequate provision.

Partner Nancy Ling practices law in wills and estates and offers this information in "Legal Matters."

Transcript:

I often have clients ask me for advice about who can contest a will? Most people think that it's their stuff, it's their will and they should be able to do whatever they want. That is what we call testamentary autonomy or testamentary freedom. However in BC we have limited this right by putting into place dependents relief legislation, frequently called “wills variation.”

Wills variation provides rights to the children and spouses of the deceased will maker which allows them to contest a will if it does not adequately provide for them. So the short answer is that your spouse and your children can contest your will if it's not fair and it does not adequately provide for them. However there are also questions of who qualifies as a spouse and who qualifies as a child? A spouse could be a married spouse unless they are separated and it also includes common-law spouses. A child means a biological child but also includes an adopted child; however it does not include step-children unless they have also been legally adopted. So while you have testamentary freedom to leave inheritances to whoever you wish, your spouse and children have the right to ask the court to vary your will if it leaves them without adequate provision.