Estate Litigation – Coping With an Unfair Will
Sometimes a loved one who passes away does not provide proper financial support for certain people under his or her Will. For example, a parent may provide unequally for his or her children or may fail to adequately care for a dependent individual suffering from a mental or physical disability. This may leave those who relied on the deceased during his or her life without proper support. Although a person can generally dispose of his or her property on death as he or she wishes, there are certain obligations that a will-maker has to those who may rely on him or her for support. If a will-maker does not provide for these people, there may be a way to apply to Court to vary or change the unfair Will.
Who Can Vary a Will?
Certain family members who were excluded altogether or not fairly provided for in a Will can make an application to vary a deceased person’s Will. Under the British Columbia Wills, Estates and Succession Act, only a spouse or a child of the deceased can make an application to vary a deceased person’s Will. Under WESA, “spouse” means a person who either was, at the time of death, married to the deceased or living with the deceased in a marriage-like relationship for at least two years.
Considerations in Varying a Will
There are time restrictions to when an applicant can apply vary a Will and certain factors that may affect an applicant’s ability to successfully vary a Will. For example, an applicant must commence a Court action to vary a Will within 180 days from the date that a Court issued a grant of probate or administration.
A Court will consider the will-maker’s reasons for not providing, or not adequately providing for, the person seeking to vary the Will. For example, the will-maker’s obligations on death may be less if a child refused, without legitimate reason, to have a relationship with his or her parent. The Court will also consider whether the will-maker chose to make gifts to this person during the will-maker’s life instead of within his or her Will.
There are also circumstances in which the will-maker’s obligation to his or her spouse or children will be greater. For example, a will-maker will have a greater responsibility to a disabled spouse or child. The financial need of the person seeking to vary the Will may also affect the will-maker’s responsibility to the applicant.
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