Can a Child Be Cut Out of a Will in Saskatchewan?

Finding out that a parent left you out of their will, or left you much less than a sibling, is painful and confusing. Many people ask whether a parent can simply do that, and whether anything can be done afterward.

The answer depends on who you are, your circumstances and the way the will was made. This article explains the two main routes Saskatchewan law recognizes, a dependants' relief claim and a challenge to the will itself, so you can understand your position before speaking with a lawyer.

This article covers the law of Saskatchewan.

A will is not always the final word

In everyday terms, a will sets out how a person wants their property divided. A parent can choose to leave a child a small share or nothing. But the law gives some people a way to ask a court to look at whether the will treats them fairly, so being named little or nothing does not automatically close the door.

Which route fits depends on whether your complaint is that the will leaves you without adequate support, or that the will itself is not valid or was not truly the parent's own wishes. These are different questions with different tests.

Dependants' relief claims

A person who qualifies as a dependant may claim under The Dependants' Relief Act, 1996 where the will makes inadequate provision for them. The Act is about support, not about whether the parent's choice felt fair.

People the province lists as dependants include:

• A legal, common-law or same-sex spouse.
• Children under 18.
• Adult children who are unable to support themselves due to disability.

This means a healthy adult child who is financially independent may not fit the dependant description, while a minor child or an adult child with a disabling condition may. Whether you qualify, and what counts as inadequate provision, depends on your facts and is worth confirming with a lawyer.

Challenging the will itself

A different path is to challenge whether the will is valid. Saskatchewan courts allow a will to be proven in solemn form under Rule 16-48, and a caveat can be filed to raise a concern.

The legal burdens differ depending on the complaint:

• Where a will was duly executed, the person who made it is presumed to have had capacity.
• If there are suspicious circumstances, the burden shifts to the person putting the will forward.
• Undue influence and fraud remain the burden of those attacking the will.

In plain words, being unhappy with the result is not enough. You need a legal ground, and evidence to support it.

How a claim can affect the estate

Distribution of the estate may be delayed six months after Letters are obtained where a dependant may claim under The Dependants' Relief Act, 1996. Final distribution also cannot occur until the CRA clearance certificate is received.

Time limits apply to estate claims. For example, a surviving spouse's family property application may not be commenced more than six months after the grant of probate or administration. Time limits for other claims should be confirmed with a lawyer promptly rather than assumed.

What to do next

• Get a copy of the will and find out whether probate has been applied for.
• Write down your age, your health, your financial situation and your relationship with the parent.
• Note anything that concerned you about how or when the will was made, such as who was involved.
• Do not wait: ask a Saskatchewan lawyer about deadlines as early as you can.
• Keep communication with the executor calm and in writing.

Frequently asked questions