Monday, February 14, 2011
If you are considering preparing or revising your Will, it is important to realize that in British Columbia the law does impose certain obligations which may impact on your wishes.
Our firm was recently involved in a case involving a dispute between adult children over disposition of a relatively large estate. Two of the children were considered to be in need of economic support however the parent’s Will left the entire estate to the child who had severe lifelong physical and mental difficulties. The court examined the opposing needs of each child and apportioned the estate accordingly, allowing a small portion of the estate to be paid to the disinherited child.
Many clients find difficulty in achieving a balance between obligations owed to a surviving spouse and those owed to their children, particularly where they may have children of more than one marriage or common law relationship.
In British Columbia, the Wills Variation Act dictates that the court may make an order regarding disposition of your estate that is ‘just and equitable in the circumstances’. This means if there is a dispute among your heirs, the Court may accept the evidence it considers proper regarding your reasons for making the dispositions you have made in your Will.
Two matters are considered in determining what is ‘adequate, just and equitable’. The first is the matter of your legal obligations – those obligations which you would have to consider during your lifetime, including an obligation to support a spouse and your minor children by providing funds for maintenance and basic needs.
Aside from legal obligations, a court will consider your moral obligations. An adult child who cannot support him or herself will be considered in relation to other obligations you may have. If there is need on the part of more than one adult child, the court will consider the relative needs of each child. The result may be that one adult child will receive considerably more from your estate than other adult children.
Frequently, for various reasons, a client may ask whether he or she may leave one child out of his or her Will. This generally presents unique issues in the planning process. A court will consider whether the reasons for disentitling a family member who would otherwise receive a portion of your estate, are valid and rational at the time of your death. Valid, that is, in the sense of being based on fact, and rational in the sense that there is a logical connection between your reasons and the act of disinheritance.
Recent decisions in British Columbia have shown that you will generally be under a moral obligation not to disinherit any child. If your estate is small, the result may be that one or more children may be disinherited if your estate assets are required to support a spouse or a disabled child. Conduct of the children does also play a role in consideration by the court, however, the court also will consider the actions of a testator which may have resulted in alienation of a child.
Careful estate planning with the help of our experienced lawyers will assist in ensuring that disposition of your assets will proceed in accordance with your wishes, thereby avoiding undue delay, excessive cost to your estate and disagreement in your family among a spouse and your children.
