Can an Adult Child Be Disinherited in British Columbia?

Learning that a parent left you out of their will, or left you much less than a sibling, is painful. Many people assume a parent can leave an estate to anyone they like. In British Columbia, that freedom has limits.

This article explains in plain terms how the wills variation rules work, what the court considers, and what deadlines matter. It cannot say how your situation would turn out, because that depends on the facts.

This article covers the law of British Columbia.

What the law says about leaving a child out

Under section 60 of the Wills, Estates and Succession Act (WESA), if a will-maker dies leaving a will that, in the court's opinion, does not make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may order that the provision it thinks adequate, just and equitable in the circumstances be made out of the estate.

So a parent can write a will that leaves a child out, but the court has power to change the result. This is called a wills variation claim. Only the court can vary a will, although capable adults may sometimes agree among themselves to distribute an estate differently.

The remedy is written around a person who dies leaving a will. On its face, it is a remedy against a will, not against a death without a will.

How the court decides what is fair

The Supreme Court of Canada, in Tataryn v. Tataryn Estate, said the standard of adequate, just and equitable is measured by two norms. The first is legal obligations, meaning what the law would have required of the will-maker during life. The second is moral obligations, meaning society's reasonable expectations of what a judicious person would do, judged by contemporary community standards.

The same decision sets priorities. Where the estate permits, all claims should be met. Where priorities must be set, claims based on legal obligations generally take precedence over purely moral claims, and some moral claims may be stronger than others.

How these ideas apply to a grown child, for example where there was estrangement, independence or a stated reason for the decision, is very fact-specific. A lawyer can tell you how courts have treated similar situations.

Reasons, conduct and what the court can order

• Reasons: the court may accept the evidence it considers proper about the will-maker's reasons for making or not making a gift, and it must consider all the circumstances that bear on whether a statement of reasons is accurate.
• Conduct: the court may refuse an order to a person whose character or conduct, in the court's opinion, disentitles them to relief.
• Form of relief: a lump sum, periodic or other payments, a transfer of property, or the creation of a trust.
• Who pays: unless the court decides otherwise, payments are borne rateably by the will-maker's estate.

The court may also suspend administration of the estate, in whole or in part, and may exempt part of the estate from an order.

Deadlines you cannot ignore

A wills variation claim must not be heard unless the proceeding is started within 180 days from the date the grant of probate or administration is issued in British Columbia. A copy of the initiating pleading must be served on the executor no later than 30 days after the 180 days expire, unless the court extends the time for service.

A personal representative generally must not distribute the estate within 210 days after the grant is issued, unless the court orders otherwise. The estate may be distributed earlier if all beneficiaries and all persons who may bring a wills variation proceeding consent.

Older estates may fall under earlier legislation with different limits, so confirm which law applies if the death was long ago.

What to do next

• Find out whether a grant has been applied for or issued, and note the date. A search by the deceased's name on Court Services Online can show whether a probate file exists.
• Get a copy of the will and gather anything showing your relationship with the parent and your financial situation.
• Note any statements the parent made about why they made their choices.
• Do not wait. Speak with a lawyer early so the 180-day period is not lost.

Frequently asked questions