You can’t take it with you, but you can leave behind instructions. The question is, will your instructions be followed? If you have decided to disinherit your children, or to cut your spouse out of the will, perhaps not.

In British Columbia, we have an act called the Wills Variation Act, which means that despite the fact that you have left behind a valid will that clearly sets out your wishes, it can be varied by your spouse and by your children. The act says that a person must make “adequate provision” for their spouse and children.  That means that the Court can order that your assets be re-distributed to make the provision that the Court thinks adequate, just and equitable in the circumstances.

So how does the Court decide what is adequate provision? It is certainly not a simple task; the decision has to balance a will maker’s rights with their moral and legal obligations to support their family.

Legal obligations include things like family law requirements for support and division of marital property. Moral obligations mean your duty to care and provide for your spouse and children. This obligation reflects society’s reasonable expectations of a fair and rational parent. Currently, your adult children do not necessarily have to be financially dependent to be successful in varying the will.

Another tricky question is who able to make a claim to vary your will? The obvious answer is your wife/husband and your natural children. Adopted children can also make a claim. However, as the law stands today your step-children cannot, unless they have also been adopted. If you are in a blended family, and leave everything to your 2nd husband, there is no guarantee that your children from a first marriage will inherit anything from husband number 2.

Also, consider who would qualify as a “spouse.” A person is your spouse for the purposes of a Wills Variation Act claim if you are married, or if you have lived with them in a “marriage-like” relationship for at least 2 years. Common law spouses can be of the same gender, and if you are married but also living in a marriage-like relationship with someone else, you could very well have two spouses!

It is, however, possible to disinherit your spouse or child if your reasons for doing so are “valid and rational.” That is another article altogether. Essentially, you have to be very careful and you should have expert legal advice if you want to successfully disinherit a spouse or a child.

The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.

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