Disinheritance From A Will
A parent who fails to leave any inheritance to a child is said to have disinherited that child. In BC it is possible to disinherit a child but the Wills, Estate and Succession Act permits that child to challenge the parent’s will after their death if the parent’s will did not “make adequate provision and proper support” for them.
If you are the testator wishing to disinherit a child there are additional steps that can be taken at the time of preparing the will to try to defeat a challenge made by the disinherited child after your death.
Similarly, if you are the child unfairly left out of a will there are ways to improve your chances of success in challenging your parent’s will.
While the court does tend to respect ‘testamentary capacity’ and wishes to give effect to the testator’s wishes, the law also imposes a legal obligation on the testator to make adequate provision for minor children (and their spouse) and a moral obligation to make adequate provision for adult children. The claim of a disabled child (disabled by physical or mental illness, psychological impairment etc.) will generally be stronger than a claim of an able bodied adult child.
Estrangement and Disinheritance
Estrangement between child and parent is a typical reason given for disinheritance. In the case of challenging a will of an estranged parent the court will consider the facts which may have caused the estrangement, whose conduct triggered the estrangement, efforts or absence of effort made by the individuals to reconcile and other relevant facts in reaching a decision on the claim to vary the will. When the estate is large enough the court may consider attempting to settle all reasonable claims, especially where no beneficiary is truly financially dependent and in need. However, these types of claims are highly fact dependent and it is essential to ensure the evidence necessary is gathered and presented at its best.
If you wish to challenge the will of a parent or spouse there is a strict limitation period in which proceedings must be issued. Contact Angela Price-Stephens for a free consultation to determine the likelihood of success of a challenge.
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