Many people find great comfort in knowing that their will clearly designates who will take possession of their treasured belongings and other assets after their deaths.

However, what about those to whom they prefer to leave nothing? Are people able to disinherit family members if they so choose?

Under the Wills, Estates and Succession Act of British Columbia, the testator has the right to pass on property and assets as he or she chooses. However, there are certain provisions in place for the court to step in and rectify the distribution. Exceptions to the Wills Variation Act where the courts may intercede include incidents where testators leave wills that fail to adequately provide for the support and maintenance of their children or spouses.

Those who believe that they have a cause of action to vary their will must apply for the variance. Only spouses and children may do so. It doesn’t matter whether the children (biological or adopted) have reached the age of majority and are self-sufficient. Common-law spouses living and cohabiting as in a marriage for the two years prior to the testator’s death, including those in same-sex relationships, also have this right. They have a six month window of opportunity to mount any challenges from the day the will is probated.

Furthermore, testators have both moral and legal obligations when they draft their wills. They are obliged to fairly consider their children and spouses in their wills. They must also satisfy all legal obligations such as contractual obligations into which they had entered when alive.

These legal obligations are prioritised over moral obligations, which are dependent upon the each individual case’s circumstances. Courts refer to the reasonable expectations of society and what judicious people would do in similar circumstances, giving courts enormous discretion.

When courts believe that testators haven’t made adequate provisions for the support and maintenance of children or spouses, they can vary the will to provide equitable, just and adequate provisions.

If you feel that you have a case for a variance, one source of advice is a BC estate administration and probate lawyer.