Seeking an Adequate Inheritance in Second Family Situations

Under common law, makers of a will have testamentary freedom. They can dispose of their estate as they see fit. In Canada, legislation curtails this right if a testator disposes of his or her assets without consideration to dependant family members. The law requires that a testator make adequate provision for spouse and/or child in his or her will. If the will doesn't do so, dependant family members can bring a court application to vary the will.

What is a Wills Variation Claim?

If a spouse or child is unhappy with the inheritance, he or she can ask the court to change the will. The court has relatively broad discretion to vary a will. If the court finds a lack of adequate provision for "proper maintenance and support" of a deceased's wife or child, the court may apply legal authority to vary the will.

This action does not invalidate the will. Rather, the court will consider what alternate amount would be adequate for the needs of the claimant. To determine the size of inheritance that the claimant is entitled to, the court examines many factors, such as

  • The claimant's financial situation
  • The claimant's lifestyle
  • The size of the estate
  • The nature of the relationship between the testator and the claimant

If a spouse or child wishes to make a variation claim, he or she can do so once the will has passed probate. However, the law imposes a strict time frame within which a claimant must bring a claim. He or she must commence the action within 180 days from the date of probate.

The Issue of Blended Families and Inheritance

Complex inheritance conflicts can arise where a testator had more than one family during his or her lifetime. This typically occurs when a testator remarried and had a child with a second spouse. Family members from both a first and second marriage may believe that they were not adequately provided for.

Who Can Make a Variation Claim?

In British Columbia, only surviving spouses and children of the deceased can make wills variation claims. These family members may be:

  • The surviving spouse
  • The common-law spouse
  • The same-sex spouse
  • Natural children
  • Adopted children

Find Out More about Wills Variation Claims

The Surrey, B.C. lawyers at Peterson Stark Scott can answer your questions. We can also assist you in determining whether you have a case for a wills variation claim. Call us today at 604-634-2308 or toll-free at 800-675-2419. You can also reach us by email.