Most of us assume when making our will that the terms we write down will be carried out in accordance with our wishes and that our assets will be distributed to those people we name.
This, however, is not up always the case. Under the Wills and Succession Act, [SBC 2009] Chapter 13, ( WESA), your spouse or children may legally challenge the terms of your will in court if they feel that the terms of your will did not make adequate provision for their proper maintenance and support. If the court agrees with them that you will did not provide for their proper maintenance or support, the court may vary the terms of your will to reflect what it thinks is adequate, just and equitable in the circumstances for your spouse or children. This may include providing a share of your estate to your spouse or children despite you expressly giving them less or nothing in your estate.
WESA also applies to common-law spouses, which is defined as people living together in a marriage-like relationship for a period of at least two years. If you and your wife had separated at the time of your death, your spouse would not be able to challenge your will under WESA, however they may be able to make a claim under the Family Law Act [SBC 2011] Chapter 25 for a division of the family assets and for support, despite the terms of your will. WESA also says that adopted children may challenge the terms of a will but not step children.
In order to try to avoid your spouse or children successfully challenging the terms of your will, you should consult with a lawyer prior to drafting it. If on the other hand you do not feel your spouse or parent has adequately provided for you in their will, you should consult with a lawyer to obtain an opinion as to whether or not you would be successful in challenging it. There are strict time limitations for commencing an action to vary the terms of a will, so you should obtain legal advice as soon as possible if you intend to make a claim to vary the terms of the will.
There are other methods to challenge the terms of a will, such as a claim that the maker of the will did not have the legal mental capacity to make a will at the time they signed their will or that the terms of their will do not express their actual wishes because of undue influence or coercion by another party. Again, they are strict time limitation periods should you wish to set aside the will because of the lack of legal mental capacity or undue influence or coercion, so you should consult with a lawyer to obtain an legal opinion as soon as possible on these issues.
Call Drysdale Law at 604-LAWYERS if you have questions about your will or your rights as a beneficiary.