Finding out that a parent has left you out of their will can feel like a final, painful rejection. In many places, a person has the absolute right to leave their assets to whomever they choose. British Columbia laws work differently. Our province has some of the most unique protections in Canada for children who are disinherited.
If you find yourself in this position, you may be asking: how can biological children challenge an estate plan that disinherits them? The answer lies in the British Columbia Wills, Estates and Succession Act (WESA). Under Section 60 of this Act, the court has the power to change a will if it does not make adequate provision for the proper maintenance and support of the deceased person’s children.
Understanding Your Standing Under BC Law
In British Columbia, biological and legally adopted children have a specific legal standing that allows them to ask the Supreme Court of British Columbia to vary, or change, a parent’s will. This right exists even if the child is a fully independent adult who was not relying on the parent for financial help.
We see many cases where a parent chooses to leave their entire estate to a charity or a new spouse, leaving nothing for their biological children. While the law respects the freedom of the person making the will, that freedom is not absolute. It must be balanced against the societal expectation that a parent should provide for their family.
The Difference Between Legal and Moral Obligations
When the court looks at a challenge to a will, it considers two types of obligations. The first is a legal obligation, which applies if the parent had a legal duty to support the child at the time of their death. Legal duty usually involves minor children or adult children with disabilities who cannot support themselves.
The second type is a moral obligation. Even if you are a successful professional with your own savings, your parent may still have a moral duty to include you in their estate plan.
The court asks what a judicious parent would do in the same circumstances. If the court finds that the parent failed in this moral duty, it can redistribute the estate assets. This redistribution aims to provide what is adequate, just, and equitable under the circumstances, as outlined in Section 60 of WESA.
Grounds for Varying a Will in Vancouver
Challenging a will is not as simple as stating that the distribution feels unfair. The court considers several factors when deciding whether to vary a will for a disinherited biological child, as follows.
Financial Need and Life Circumstances
The court will consider your current financial situation compared to that of the other beneficiaries. If you are struggling while another beneficiary is wealthy, the court may be more likely to vary the will in your favour. Your standard of living and future needs also play a significant role in this assessment.
The Relationship with the Parent
A long, supportive relationship generally strengthens a moral claim. Conversely, if there was a period of estrangement, the court will look at the reasons behind it. If the parent was responsible for the estrangement, the child’s claim might remain strong. But if the child walked away from the relationship for no valid reason, the court might uphold the disinheritance.
Contributions to the Parent’s Estate
Did you help your parent build their wealth? Perhaps you worked in a family business for low wages or stayed home to provide care for them in their later years. Contributions from the child may create a stronger moral and sometimes legal claim to a share of the estate.
Competing Claims
The court must balance your claim against the needs and moral rights of other beneficiaries. A spouse usually has the strongest claim, followed by children. If a parent leaves everything to a distant relative or a friend they barely knew, a biological child’s challenge often carries more weight.
When a Disinheritance Clause Is Used
Some parents include a specific clause in their will explaining why they left a child out. They might claim the child was already given money during the parent’s lifetime or that the child was abusive. These statements are not the final word.
The court will investigate whether these reasons are valid and rational. A reason is valid if it is based on true facts. It is rational if there is a logical connection between those facts and the decision to disinherit. If the parent’s reasons were based on a misunderstanding or a false belief, the court can set those reasons aside and vary the will.
Strict Timelines for Estate Litigation
Timing is the most critical factor in any estate challenge. In British Columbia, you have a very narrow window to start a wills variation claim. According to Section 61 of WESA, a claimant must initiate the action within 180 days from the date the court issues the representation grant.
If you miss this deadline, you may lose your right to challenge the will entirely. Because these timelines are so strict, we recommend seeking legal advice the moment you learn about a potential disinheritance.
How We Approach Estate Litigation
Navigating the Supreme Court of British Columbia requires a strategic and practical approach. We understand that estate disputes are deeply personal and often involve decades of family history. We work with our clients to develop plans tailored to their goals, budgets, and concerns.
While we often aim to settle these disputes through mediation to save time and stress, we are trial lawyers at heart. If a fair agreement cannot be reached outside of the courtroom, we are prepared to bring your case before a judge. Our focus remains on finding the best solutions while working within your personal constraints.
If you’re ready to get litigation help from experienced trial lawyers based in Downtown Vancouver and serving British Columbia, call 604-800-0774 for legal representation. We offer free consultations for potential clients to evaluate their claims.
