When a loved one passes away, many assume the deceased’s estate will pass to their remaining family members. However, this is not always the case. A will-maker can decide to leave a significant portion of their estate to friends, even if that means that family members get little to nothing in inheritance.
This can come as a shock to family members, especially those closest to or dependent on the will-maker. For friends named in the will, there may be concerns raised about whether their gifts will hold up. Under BC’s Wills, Estates, and Succession Act (WESA), will-makers have fairly broad freedom to distribute their assets as they see fit, including favouring friends rather than family. That said, will-makers are still beholden to WESA, which does entitle certain family members to provisions from the estate regardless of what the will in question states.
Can a Will-maker Leave Assets to Friends Instead of Family?
While WESA dictates how estates are handled, it also respects a will-maker’s wishes to decide how their estate is distributed, so long as their will is valid. It is perfectly legal for someone to leave behind much of their estate to a close friend or multiple friends while providing family members with few or no gifts.
If the deceased passed away without a valid will, or their will was deemed invalid and unable to be cured by the court, WESA’s intestacy laws entitle surviving family members beyond spouses and children to receive a share of the estate simply by virtue of their relationship to the deceased. In cases where a valid will does exist, those intestacy rules do not apply; the will-maker’s documented wishes take precedence.
What WESA Requires for Spouses and Children
WESA does not give will-makers unlimited liberties when it comes to distributing inheritances. Spouses and children hold a protected status under WESA, meaning that a will-maker has a legal and moral obligation to make adequate provisions for them. Spouses can include a partner legally married to the will-maker or a common law partner who lived in a marriage-like relationship for at least two years before the will-maker passed away, while children include both biological and legally adopted. Stepchildren who were not legally adopted by the will-maker do not have the same standing under WESA and cannot pursue a wills variance claim.
When assessing whether adequate provision was made, courts examine the responsibilities the will-maker held toward their spouse and children during their lifetime. This includes how the will-maker was already financially supporting them and what level of maintenance would be reasonable to continue through the estate. The court’s approach often mirrors family law principles, particularly where dependants are involved, whether minor children or adults who relied on the will-maker for financial support.
Courts also look to societal standards to determine what a judicious, wise, and just person would have done in the will-maker’s position. Therefore, the court is not only asking whether the spouse or child was technically provided for, but whether the provision reflects the kind of responsibility a reasonable person would recognise they owed to their family. A token gift, for instance, may satisfy the letter of the will but fall short of what the court considers a genuine fulfilment of that moral duty.
When Family Members Can Challenge a Will in BC
Section 60 affords spouses and children the right to apply to the court to vary a will if they were not adequately provided for. No other family members, including siblings, parents, or extended relatives, have standing to bring forth a wills variance.
When reviewing a claim, courts consider a range of factors, such as the financial need of the spouse or children, the standard of living they were accustomed to during the will-maker’s lifetime, the overall size of the estate, and the nature and closeness of the relationship. Courts also assess whether the will-maker’s decision to exclude or limit provision for their spouse or children was rational in the circumstances.
Where estrangement or other breakdown in the relationship exists, for example, a court may find that the will-maker had defensible reasons for their choices, though this is assessed on a case-by-case basis. If a claim is successful, the court has the authority to vary the will, which could mean gifts left to friends are reduced in order to provide the spouse or children with what the court determines to be an adequate provision.
How Stephens & Holman Can Help
If you are a family member who was left out of a will or received less than you believe you are entitled to, navigating a wills variation claim can be complex. Stephens & Holman has extensive experience in estate litigation in BC, helping spouses and children understand their rights under WESA and pursue fair provision from an estate. If you believe a will has not adequately provided for you, contact one of our offices today to schedule a consultation.