Can a Disabled Adult Child Claim Against a Will in British Columbia?

If you care for an adult child with a disability, you may worry about what happens when a parent's will leaves that child little or nothing. You may also worry that an inheritance could cause problems for the benefits your child relies on. Both worries are reasonable, and they pull in different directions.

This article explains how a wills variation claim works in British Columbia, who must be told about it, and where trusts fit in. How an inheritance or a court-ordered payment affects disability assistance depends on benefit rules that are not covered here. Confirm that point with a lawyer before you act.

This article covers the law of British Columbia.

Who can bring a wills variation claim

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

Only the will-maker's spouse or children can bring this kind of claim. The section does not name other relatives or beneficiaries. A disabled adult child is still the will-maker's child, so the claim is open to them in principle. A parent or guardian may need to act for the child, and who can do that depends on the child's circumstances.

This remedy is written around a will-maker 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 adequate

The Supreme Court of Canada has 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.

Where the estate allows, all claims should be met. Where priorities must be set, claims based on legal obligations generally come before purely moral claims, and some moral claims are stronger than others.

The court may also accept the evidence it considers proper about the will-maker's reasons for making or not making a gift. When it weighs a statement of reasons, it must consider all the circumstances from which an inference can reasonably be drawn about whether the statement is accurate. The court may refuse an order to a person whose character or conduct, in its opinion, disentitles them to relief.

Benefits and trusts: what the court can order

If the court varies a will, it may order that the provision be a lump sum, periodic or other payments, a transfer of property, or the creation of a trust. That range of options matters for a child with a disability, because the form of the provision can differ a great deal from one order to another.

The court may also suspend administration of the estate in whole or in part, and may exempt part of the estate from a variation order, on any terms it considers appropriate.

How each form of provision affects disability assistance is not something to guess at. Before you ask for, or agree to, any particular structure, get advice on these points:

• Whether a lump sum would affect your child's current benefits.
• Whether a trust is the better way to hold the money, and who would act as trustee.
• Whether the existing will already creates a trust for your child.
• What a settlement would mean for your child's benefits as well as for the estate.

Notice to the Public Guardian and Trustee

If the will-maker has minor children, or a spouse or child of the will-maker is mentally incapable, the pleading must also be served on the Public Guardian and Trustee. If it is not, the claim will not be heard. Once served, the Public Guardian and Trustee may appear, be heard and receive any costs the court orders.

The Public Guardian and Trustee says only the court can vary a will, although capable adults may sometimes agree among themselves to distribute an estate differently. For an incapable adult, only the adult, their legal representative or their litigation guardian can consent to a settlement. A child under 19 cannot consent to a settlement of an estate claim, and no one can consent on their behalf.

Deadlines and next steps

A wills variation claim must not be heard unless the proceeding starts 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 that 180-day period ends, unless the court extends the time for service.

A personal representative must not distribute the estate within 210 days after the grant is issued unless the court orders otherwise. Distribution within that period is possible if all beneficiaries and all persons who may bring a variation proceeding consent. Within 10 days after the pleading is issued, the claimant may register a certificate of pending litigation against affected land.

• Find out whether a grant has been issued and note its date.
• Gather the will, your child's benefit information and any medical or care records.
• Ask a lawyer how a payment or trust would interact with your child's benefits.
• Do not consent to an early distribution without advice.
• Raise the child's disability with your lawyer so the Public Guardian and Trustee is served where required.

Frequently asked questions