How Does Disinheritance Work?
Many people are unclear on whether or not disinheritance is legal. In British Columbia, a person may disinherit their adult children in their will, but the Wills Variation Act makes it possible for children to dispute the will and potentially have it changed. However, in some cases the disinheritance is considered valid and the child or children in question will be unable to successfully dispute the will. If you are considering disinheriting a child in your will or you are a disinherited party wondering whether or not you could successfully dispute the will, make sure that you know the current law in British Columbia before pursuing any further action.
When Can You Disinherit Someone?
A child can be disinherited in certain cases, but you must sufficiently document the reasons for your decision. If the court deems the disinheritance of an independent adult child “valid and rational,” the will may be difficult to dispute. This is determined on a case-by-case basis, depending on the unique circumstances of the family involved. However, in some cases the disinherited party can successfully dispute the will using the Wills Variation Act.
The heart of the B.C. Wills Variation Act is found in s. 2 which sets out the statutory basis for a successful wills variance claim. This section provides that if, in the court’s opinion, a will fails to make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court has the power, in its discretion, to allow the wills variance claim and vary the will.
Section 5 of the British Columbia Wills Variation Act permits the court to accept evidence of the testator’s reasons for disinheritance and can take those reasons into account in determining if the will should be varied.
Increasingly it seems disinheritances will not be permitted when they offend community standards or are based on “morality”.
For example, if you believe that your child’s choice of romantic partners is morally wrong, you will likely not be successful in disinheriting them. However, if your child has been abusive to you or has severed ties with you and you have evidence of this, you are much more likely to avoid a successful dispute.
Hire a Wills & Estates Lawyer
Inheritance law can be complicated and difficult to understand, so if you are considering disinheriting a child, or if you are a disinherited child who would like to dispute a parent’s will, always consult with a trustworthy legal professional first.
At Hoogbruin & Company, our lawyers have years of experience dealing with wills variation and disinheritance cases. Get in touch with our firm to speak to a lawyer today.