“Oh, No! She’s Left Me Out of her Will!”

Imagine that you've devoted years to looking after an aging parent. You’ve put up with her moods and tempers, have kept her fed and healthy, and have sacrificed your own career and happiness, and maybe even that of your family. You’ve never talked about money, but there was always an understanding that, when the time came, she would look after you in her will. Or so you thought.

Now imagine your shock and pain when the will is pulled from her safety deposit box and you discover that she has given everything to the “Vancouver Dog and Cat Home” (a popular example from my law school days; I don’t think it actually exists.)

You aren't Anna Nicole Smith, and your husband was no billionaire like J Howard Marshall. But you do have a right to justice (if not a cover shot in "People").

In B.C. we have the Wills Variation Act which allows a court to vary a will to make provision for immediate family – children or spouses (usually separated and sometimes common law) – who have been unfairly left out of the will of a parent or spouse. The purpose of the Act is to provide a fair division of the assets of an estate, taking into account the legitimate needs and expectations of children and spouses. A court will consider any legal or moral obligations the deceased had to her next-of-kin and, where the will does not fairly distribute the person’s property, will reapportion the estate.

It is usually easiest for minor children to challenge wills, because the deceased parent likely had a legal obligation to provide for them. The same is true for a separated spouse, especially where there is an ongoing obligation to pay support (for example, a long term marriage). More difficult but still possible are the claims of adult children, such as in our example, where an expectation of compensation has arisen. Of course the size of the estate is an important factor; the more property (money or real estate or other possessions) there is, the easier time a court will have of making sure that all legitimate needs are met.

Now let’s look at the case from the deceased mother’s point of view. It is not a foregone conclusion that, in our example, a court would redistribute the estate. For example, it might turn out that while she was living the mother had transferred title to her home to you, her daughter. She thought that you had already been well compensated for your efforts, and the court might well agree.

Will challenges typically arise in blended families. It is a good idea when making a will to consider who might later challenge it, and either include them, or provide a thorough explanation as to why they are being given less than “fair”. This may be along the lines of “I am leaving my son John out because he is a no-good drug-taking black sheep who would throw the money away.” This will work better if it is true.