Wills and Disinheritance
The Wills Variation Act allows courts to change a will so that dependents of the deceased are adequately and properly provided for financially. The Act helps to ensure that all of the deceased’s legal and moral obligations to dependents are met in the dispensation of their estate. Judges use their discretion to carefully balance this with honouring the wishes of the deceased as they are set out in their will.
The Wills Variation Act can be quite controversial. It’s your property, after all, why should a court be allowed to change what you’ve decided to do with it after your death?
If you’re writing your will and want to either exclude your spouse or child from inheriting, limit what they get, or decide that some should get much more than others, then there are several steps you can take to try and make sure your wishes are followed. However, whether you agree with it or not, a judge will still have the discretion to change your will after death if it’s found that your dependants were not adequately and properly provided for in the circumstances.
Add a statement to your will
You can add a statement to your will that explains why you’ve decided to give someone no or limited inheritance. This can be written directly into your will when you’re originally drafting it. If, however, you decide to provide an explanation after your will has been signed or you want the explanation to be separate from the will itself, you can set out your reasons in a letter addressed to the Supreme Court of British Columbia. You’ll have to sign this letter along with two witnesses and, ideally, should store it with your will. Then if, after your death, your spouse or a child makes a claim under the Wills Variation Act, the letter can be submitted to the judge for consideration.
The reasons you provide should be rational and factually accurate. Courts will generally give less weight to arguments that are cruel or vindictive. Stronger reasons will be those that are reasonable, such as that you’ve already given a lot to an individual while you were alive or that you have a serious problem with the person’s character or your relationship with them.
In terms of factual accuracy, the court will want to make sure that your reasons are based on established and verified facts and not just opinion or conjecture. For example, if you say that you provided for someone with a lot of money before your death, but only ever gave them a $10 gift card for Starbucks, then the persuasive value of your reasons will be limited.
The court’s treatment
The court will consider your statement along with any other related evidence submitted to it by the executor or administrator of your estate. The judge will also receive evidence from the claimant and other beneficiaries. If you have a well reasoned and factual argument, it will improve the chances that the judge will decide not to vary your will. However, despite anything you write, the judge has the discretion to choose otherwise if they find that the distribution in your will fails to adequately and properly maintain one or more of your surviving dependents.