Can My Spouse Challenge My Decision to Exclude Him or Her from My Will?

In a prior post, it was discussed what may arise from a decision to exclude your children from your Will and so today’s topic will cover: What may arise from your decision to exclude your spouse?

Section 60 of the Wills Estates Succession Act (“WESA”) empowers a court to vary the terms of a Will that does not make adequate provision for the Will-maker’s spouse (including common law spouse) where such spouse makes an application to the court for a variation of the Will-maker’s Will. To quote:

S.60. Despite any law or enactment to the contrary, if a Will-maker dies leaving a Will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the Will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the Will-maker’s estate for the spouse or children.

The words “adequate”, “just” and “equitable” have been judicially considered by the Courts and have determined that the Will-maker’s Will must satisfy the Will-maker’s legal and moral obligations to the surviving spouse.

When determining what the Will-maker’s legal obligations are to the surviving spouse, the Courts will look to what the surviving spouse would have received if the parties had separated and then look to what the surviving spouse’s entitlement would be under the mean. BC courts have measured “adequate, just and equitable” by comparing what the surviving spouse received under the Will with what they would have been entitled to under the Family Law Act of British Columbia. This means in cases of long term marriages where assets were intermingled, the surviving spouse’s claim to a share of the Will-maker’s estate is stronger than those of a spouse who was married to the Will-maker for a short period of time and whose finances were separate from the Will-maker.

When determining what the Will-maker’s moral obligations are to the surviving spouse, the Court will consider whether the provisions of the Will-maker’s Will are within society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards.

In light of the afore-going, you would think it would take a fairly unique set of facts for a Court to uphold a Will-maker’s decision to entirely exclude a long term spouse from being a beneficiary under the terms of the Will but the Courts have in fact done so where the parties, in a second marriage, maintained separate finances and the Will-maker make provision for the surviving spouse to live in the home for as long as the surviving spouse wanted.

Ultimately, the question of whether a Court will uphold the Will-maker’s decision to exclude or limit a spouse’s entitlement to the estate will depend on the specific facts surrounding the marriage of the parties and the provisions of the Will-maker’s Will.

If you or a loved one has been excluded from an estate of a spouse or parent, timely legal advice and representation can be had by contacting Vancouver/Burnaby inheritance and estate litigation law lawyer Andrew Rebane at Resolutions Law Corporation, andrew@resolutionslawcorp.com or 778-372-7107.

What if I Don’t Get Along with My Co-Executor?

As an experienced lawyer who has drafted countless Wills in my career, it is not uncommon for my clients to name their children as joint executors of their estate in their Will. Appointment of joint executors requires these individuals to make all decisions affecting the Estate together by consent. This requirement that all executors act unanimously may prove problematic where the children maintain a veneer of a loving relationship for the sake of their parents which inevitably breaks down upon the passing of their parents. The requirement of unanimity between joint executors can create undue delay and additional financial and legal costs where the joint executors can’t agree on matters such as selling a house or how to carry out the terms of a Will.

What can one do in a situation where one cannot act in co-operation with a co-executor?

An option is to apply to court to “pass over” or “remove” the other co-executor with whom you cannot co-operate. Section 158 of the Wills Estates Succession Act (“WESA”) empowers a court, upon application from someone who has an interest in the estate (executor or beneficiary), to remove someone who is executor and has begun the process of the administration of the estate or to bypass a named executor prior to that executor handling the estate. In order for the court to make an order removing or bypassing an executor, the Court must be convinced the executor should not continue or become the executor for any number of the following reasons:

(a) refuses to accept the office of or to act as personal representative
without renouncing the office,
(b) is incapable of managing his or her own affairs,
(c) purports to resign from the office of personal representative,
(d) being a corporation, is dissolved or is in liquidation other than
a voluntary dissolution or liquidation for the purpose of amalgamation
or reorganization
(e) has been convicted of an offence involving dishonesty
(e.1) is an undischarged bankrupt,
(f) is

(i) unable to make the decisions necessary to discharge the office of personal representative,
(ii) not responsive, or
(iii) otherwise unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative, to an extent that the conduct of the personal representative hampers the efficient administration of the estate, or

(g) a person granted power over financial affairs under the Patients Property Act.

Section 158 of WESA may be relied upon where the executor to be removed has received a gift from the deceased under suspicious circumstances and is refusing to return it to the estate or where a person named as an executor is either by intent or omission failing to take the necessary steps to deal with the estate.

Mere personality clashes between executors or between executor and beneficiary is not a sufficient reason in and of itself to have an executor removed or bypassed. Further, the Will-maker’s decision to appoint an executor is not to be lightly interfered with by the Court but rather what is in the best interests of the estate and its beneficiaries as a whole. When determining whether an executor is to be removed or bypassed, the Court will consider the following factors:

Whether the executor has endangered the estate’s property or will likely endanger the estate’s property;
Whether the executor has a history of dishonesty in business or personal dealings;
Whether the Executory has the mental capacity to execute the duties of an executor; and
Whether there is an actual or potential conflict of interest between the interest of the executor and the executor’s interest and the estate’s interest.

Contested estate matters involve relatively complicated legal issues that are further complicated by a special set of rules that govern how these contested matters are to be resolved and so it is usually not recommended to self-represent in such situations.

If you or a loved one are in need of advice regarding a contested Estate or Probate matter, consult Vancouver and Burnaby Probate lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

Does an Adopted Child have Rights to their Birth Parent’s Estate?

According to section 60 of the Wills, Estates and Succession Act (WESA), if a Will-maker dies leaving a Will that does not make adequate provision for the Will-maker’s children, the Will-maker’s children may start a proceeding to vary the Will and have the Court order a more adequate, just, and equitable provision to be made out to them from the Will-maker’s estate.

What if you are an adopted child and you feel that your birth parent’s Will does not make adequate provision for you? Would you be able to vary the Will under section 60 of the WESA?

This question was considered in British Columbia Supreme Court case Boer v Mikaloff, 2017 BCSC 21. The Court ultimately decided that it would not be possible to vary the Will under section 60 of the WESA, considering section 37(1)(c) of the British Columbia Adoption Act, which states that birth parents cease to have any parental rights or obligations with respect to the adopted child. In this particular situation, the Plaintiff was not considered a child of his birth mother.

The Court also considered section 3(2)(a) of the WESA, which states that a child is not entitled to the estate of their pre-adoption parent except through the Will of that pre-adoption parent. This led the Court to the conclusion that a child is essentially in the same position as a non-family member when it comes to their entitlement in their birth parents’ Wills.

Taking both of these sections into account, the Court decided that an adopted child would not be able to take advantage of section 60 of the WESA since the child is technically no longer the child of their birth parent, and retains no rights to their birth parent’s estate other than what is specifically made out to them in their Will.

If you or a loved one are in need of advice regarding Wills and Estates or wish to have assistance in making a Will or challenge a Will, consult Vancouver and Burnaby Wills & Estates lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

What is a Will? What Happens if You Don’t Have One?

A Will is a legal document that takes effect upon your death. The main purpose of a Will is to say who will get your property (land and personal possessions) when you die. It can appoint a new guardian for your children if you have any, as well as appoint a chosen executor who will ensure your debts are paid, your property is protected, and your wishes are carried out.

No Will, No Way?

Dying without a Will is referred to as “dying intestate”. What happens if you die intestate? Contrary to popular belief, the government is not automatically entitled to your estate in this case.

Without a Will, there is no executor so someone is needed to administer your estate. In British Columbia, the Wills, Estates and Succession Act (WESA) determines how your assets are to be divided and who administers your estate for you.

According to WESA, the distribution rules are as follows:

If you have a spouse but no descendants:
- your estate will be distributed solely to your spouse

If you have a spouse and descendants:
- household furnishings and a “preferential share” of your estate will go to your spouse

If you have descendants or relatives but no spouse:
- Your estate will be distributed to your descendants

(In this context, a “spouse” is defined as someone you are married to, or with whom you have been living in a marriage-like relationship for at least 2 years.)

Without a Will, you lose control over who gets your estate when you die, and you give up the right to appoint a guardian of your choice for any young children you may have. Your family may also have to deal with delays, extra expenses, and inconvenience.

To make sure your wishes are clearly and precisely communicated, it is important to make a Will. With a Will, you can decide how to have your property and assets distributed and by whom when you die instead of having them distributed according to BC law. Although you can use a kit to write your own Will, it’s a good idea to get help from a lawyer to make sure your Will is legal. If your Will isn’t considered legal, it can create a lot of problems for your heirs.

If you or a loved one is in need of advice regarding Wills or wish to have assistance in making one, consult Vancouver and Burnaby wills & estates lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.