Helping surviving spouses and children receive the proper support they deserve

How property will be distributed following a death is generally left to the discretion of the testator when they draft their will. Testators do, however, have a moral and legal obligation to fairly consider providing adequate support for spouses and children when drafting their wills. Regardless of this duty, many situations arise in which a surviving spouse or child realizes that they were wrongfully disinherited after their family member has died. Fortunately, the law does provide recourse for those who do not receive fair support or fair inheritance under a will in the British Columbia Wills, Estates and Succession Act (WESA). If you believe you may have a case under WESA , you should consult with an experienced disinheritance and wills variations lawyer at McLarty Wolf as soon as possible.

Applications under WESA can be complicated and emotional

Under WESA, disinherited spouses and children may apply to have the courts vary the provisions of a will in a manner the courts believe to be just and equitable. The courts may consider many different factors when deciding whether to vary a will, including the following:

  • The nature of the testator’s relationship with the spouse or child;
  • Whether the spouse or child provided adequate care for the testator;
  • Whether the testator gave the spouse of child significant assistance or gifts during their life;
  • Misconduct on the part of the spouse or child;
  • Promises made to the spouse or child;
  • Whether the testator’s intentions in the will seem rational;
  • The needs and standard of living of the spouse or child; and
  • The size and nature of the estate.

As you can imagine, the Court will often have to delve into personal and emotional issues regarding the familial relationships and examine complex and sometimes contradictory evidence. For these reasons and more, the assistance of a skilled lawyer is imperative during the wills variation process.

Wills Variation Act

The Wills Variation Act was enacted to empower the courts to vary a will in certain circumstances where spouses and children are disinherited, there is an unequal distribution among the children, or one of the beneficiaries do not receive sufficient monies under the will meet their needs. The Wills Variation Act confers a broad discretion on the Court to vary wills in circumstances where the gift made under the will is not adequate, just and equitable.

McLarty Wolf has made numerous applications under WESA and defended applications contesting wills on behalf of clients for many years. These cases can be factually complex and emotional as they deal with the written intent of the family member who has unfairly favoured one child over another, or a spouse or second spouse over a child. Relevant evidence in such cases typically includes details of the relationship between the applicant and the family member whose will is in question, the moral duty owed to spouses and children, what level of support the applicant provided to the family member whose will is in issue, the relative financial positions of family members, and their respective financial needs.

Our experience in these matters lies in being able to provide sensible advice as to whether an application under WESA is in your interests, the costs involved and the potential benefits. We understand that decisions are difficult to make in the context of the death of a family member and will provide any support and information we can to make this difficult process more manageable. If you have lost a loved one and there is some question as to whether or not that person’s will made adequate provision for you or someone else in the family, or you require experienced lawyers to defend an application, please make arrangements for a consultation with McLarty Wolf immediately.


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