A will-maker’s failure to provide adequate and proper maintenance and support for their spouse or children can yield serious implications for the will-maker’s estate.

Although a will-maker is, generally speaking, free to distribute their assets as they see fit, there are some important limitations to testamentary freedom. Perhaps the most commonly litigated of these limits is the right of a will-maker’s surviving spouse or children to apply to the court to vary the terms of that person’s will.

Will variation applications are governed by s. 60 of the Wills, Estates and Succession Act which allows the court to vary the terms of the will and to order alternative provisions based on what would be adequate, just and equitable in the circumstances. These orders, when granted, can provide a significant financial benefit to the person or persons to whom the will-maker owed a legal and/or moral obligation to provide, despite the will-maker’s decision to disinherit them.

What will constitute ‘adequate and proper maintenance and support’ depends on various factors such as the will-maker’s reasons for the disinheritance, the size of the estate, and competing claims from other dependents. Although not all will variation claims are successful, many are, and time is of the essence in bringing or defending these claims as there are strict statutory time limits governing same.

Whether you are a will-maker wondering how to protect your testamentary freedom, a person who has been left of a parent or spouse’s will, or an executor attempting to navigate a will variation claim filed against an estate, we are here to walk you through your rights and obligations and help you get where you want to go. Call or email us today to find out more!

This article is intended for information purposes only and should not be taken as the provision of legal advice. Grace C. Cleveland is a lawyer with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or grace@clevelanddoan.com.