Next season, Family Matters is dedicating an episode to the topic of wills, estates, and family disputes. Some of the worst legal battles are over the inheritance of someone’s estate. Families often are torn apart over who gets what. Each province has different legislation and rules governing someone’s estate. Although other provinces may have similar regimes, this introduction to the topic will focus on issues and law in British Columbia.
Historically, utmost importance was given to the concept of testamentary freedom in someone’s will. This concept emphasizes the freedom of someone to leave their property to whomever they wish, and this decision should be respected. However, the Wills Variation Act in BC allows the court to change how an estate is distributed. This Act is concerned with the support a spouse or children are left with. If the court does not think the support given is “adequate, just and equitable”, the court will alter the will so that it is “adequate, just and equitable”. This enforces the moral obligation to provide for one’s family, even upon death.
Recent cases demonstrate that this support includes more than just the bare necessities of life. Instead the court asks what a fair person would do, with reference to current community standards. If a spouse or children are dependent on the deceased, there is a greater obligation to provide for them. If an estate is particularly large, the court will expect even independent adult children to receive a portion of the estate. While disinheriting a spouse or child in a will is possible, the reason for it must be substantial, especially if the estate is large.
There is much litigation over the interpretation of someone’s will, and whether it should be changed under the Wills Variation Act. Often these battles aren’t about the money, and instead reflect old sibling rivalries and disputes. To prevent legal battles over a will, it is recommended to fully disclose the details of the will to its beneficiaries. This helps dissolve any suspicions that one person is cheating another out of their fair share.
Legal advice is always valuable when personally dealing with wills and estates. A lawyer can help make sure your will is valid, respected and followed. As an executor, you can be sued in various circumstances, so it is important to become educated about your legal duties and how to fulfill them. As a beneficiary, you will probably be concerned that you are receiving your fair share of the will, and a lawyer can help ensure that happens. While the process may not be smooth for every estate, a lawyer can dramatically improve the experience.
Wills Variation Act link: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96490_01