Understanding Your Rights as a Disinherited Spouse or Child

Finding out you’ve been left out of a loved one’s will is a shock that hits hard. I see it regularly in my practice as a probate lawyer in BC: the hurt and confusion that comes when a spouse, child, or other family member opens an estate document expecting to find their name, only to discover they’ve been excluded.

If this has happened to you, you’re probably wondering whether there’s anything you can do about it. The good news is that BC law doesn’t give people unlimited freedom to disinherit their closest family members. Spouses and children have specific protections when a will seems unjust or leaves them without adequate provision.

In this post, I’ll walk you through what rights you have, what options might be available to you, and how BC courts typically handle these difficult family situations.

Disinherited in BC: Do You Have Legal Grounds to Challenge a Will?

In British Columbia, the Wills, Estates and Succession Act (WESA) gives the courts the authority to change a will if it doesn’t make adequate provision for the proper maintenance and support of a spouse or child. This is known as a wills variation claim.

This right is only available to:

  • Spouses (including common-law spouses who lived in a marriage-like relationship for at least two years before the death)
  • Biological and adopted children (step-children are not automatically included unless legally adopted)

If you fall into one of these categories and feel you’ve been unfairly left out (or inadequately provided for) you may have a claim.

Common Reasons for Being Left Out of a Will

People are disinherited for a variety of reasons. Some common situations include:

  • Estranged parent-child relationships
  • Family conflict or perceived betrayal
  • Unequal treatment among siblings
  • Second marriages and blended families
  • Preference shown to one child over others
  • Belief that a child is already financially stable

Even if there was tension in your relationship or the will explains why you were excluded, the courts may still find that the exclusion was not justified under BC law.

How the Courts Decide If a Will Is “Unfair”

BC courts use a two-part test to assess whether a will is adequate, just, and equitable:

  1. Legal obligations – Did the deceased have a legal duty to support you (e.g. as a spouse or minor child)?
  2. Moral obligations – Even if no legal duty existed, did the deceased have a moral duty to provide for you given your relationship, contributions, or dependency?

Courts consider a range of factors, including:

  • The size of the estate
  • The nature of your relationship with the deceased
  • Contributions you made to the estate or family (financial or non-financial)
  • Your financial circumstances
  • Any reasons for disinheritance given in the will

Every case is unique, and the courts aim to balance the deceased’s testamentary autonomy with their legal and moral duties to family members.

To better understand the legal standards, you may find this BC Ministry of Attorney General resource on WESA helpful.

Time Limits: Don’t Wait Too Long

If you’re thinking about contesting a will in BC, act quickly. You must file a wills variation claim within 180 days from the date probate is granted.

This deadline is firm, and missing it may mean losing your right to challenge the will, regardless of the strength of your claim. You can search for probate filings through the BC Supreme Court registry.

What Happens If Your Claim Is Successful?

If the court agrees that the will fails to meet the legal or moral obligations owed to you, it has the power to:

  • Increase your share of the estate
  • Redistribute the estate among the beneficiaries
  • Override specific provisions of the will

The goal isn’t to rewrite the will entirely, but to ensure that it reflects a fair and just distribution under the circumstances.

Practical Steps If You’ve Been Left Out of a Will in BC

If you find yourself in this situation, here’s what to do:

  1. Request a copy of the will – As a spouse or child, you’re entitled to see it.
  2. Find out if probate has been granted – This starts the 180-day clock for a wills variation claim.
  3. Speak to a probate lawyer – A lawyer can assess the strength of your claim and guide you through next steps.
  4. Gather evidence – This may include documents showing your relationship, financial need, or contributions to the estate.
  5. Avoid informal settlements without advice – You may be entitled to more than what’s initially offered.

Key Takeaways

  • If you’re a spouse or child and feel you’ve been unfairly left out of a will in BC, you may have the right to challenge it under the Wills, Estates and Succession Act.
  • BC courts strive to ensure wills are both legally and morally fair.
  • You must act within 180 days of probate, so timing is critical.
  • A lawyer can help you determine if you have a case and how best to proceed.

If you believe you’ve been unfairly left out of a will and are ready to speak with a legal professional, the team at ALG Lawyers is here to help. We understand how difficult these situations can be and will work with you to explore your options with care and clarity.

 Contact ALG Lawyers today to schedule a consultation.

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