Previously, we discussed the key considerations when making a will. We also detailed how to handle estate planning and execution amidst the COVID-19 pandemic in this post. However, what happens if you feel that you have been wrongfully disinherited by a testator? A testator is an individual who created a will and has now passed away. Essentially, testators are morally and legally obligated to provide for their spouse and children even after death. The British Columbia Wills Variation Act serves to correct any inequity found in what is to be inherited by the spouse and children of a deceased individual. Below you’ll find some information to clarify the claims requirements and process.

Who Can Apply?

Only a spouse or child of a deceased individual can seek out changes to an existing will. The term ‘spouse’ includes same sex and common law spouses given that the couple was cohabiting in a marriage-like relationship for at least 2 years. In addition, the Act limits its definition of children to only those who are biological or adopted. This means that step children can only apply if they have been legally adopted by the testator. 

The Process

The court has to review the claim very carefully prior to making any changes to the will. It is responsible for determining whether the moral obligation of meeting the needs of the spouse and children are met. What’s difficult is that the testator does have the right and freedom to distribute their assets as they wish. Therefore, those making a wills variation claim must prepare as much relevant evidence and information as possible to make their case clear. Consider seeking legal advice when applying as lawyers are well-versed with the assessment process.

What do the Courts Consider?

Each case is unique. The court doesn’t have a cookie cutter set of requirements to make assessments. However, the following is a list of key considerations to make when preparing your evidence:

  • Did the testator make any promises to the applicant?
  • What was the relationship like between the testator and the applicant?
  • What kind of support did the testator give the applicant throughout their relationship?
  • How big is the estate?
  • What are the needs of the applicant?

If you require further information, please find the Wills Variation Act here.

How Can We Help?

The team at Sodagar & Co. has the means and experience necessary to help you navigate the complex process of preparing for a wills variation claim. We understand that the nature of this matter is difficult to address, but legal representation can make the process much faster and easier. If you believe that you have been wrongfully disinherited by a deceased spouse or parent, we are here for you.

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