Can you challenge an unfair will? Where you live makes a difference

Article content

Whenever we see estates with significant wealth and disgruntled family members who feel they’ve been ignored, we find challenges to the will.

Making a claim takes time, however, and might also require baring details of the relationship between the deceased and the claimant to the court and the public. And it could cost a lot of money.

The recent case of Pascuzzi v Pascuzzi in British Columbia was found in favour of the claimant. In the case, a man had left his entire $1.8 million estate to his new wife. B.C. Supreme Court Justice David Crossin ordered 30 per cent of the proceeds to be paid to the man’s 32-year-old daughter from a previous relationship.

James Zaitsoff, head of the estate and trust litigation group at Legacy Tax + Trust Lawyers in Vancouver, says, “It depends on the circumstances of any given family, but for the most part, a parent will usually, as long as their estate is large enough, not get away with completely disinheriting a child.”

The deceased can explain his or her reasoning in the will, he says. One example could be if a child happens to be wealthy – that’s a good reason to make less of a provision for them compared to another child.

But the courts in B.C. and Alberta, in particular, see the decision as a balancing act, says Zaitsoff.

“In B.C., the idea is that the courts want to balance two interests. One is making adequate, just and equitable provisions for your spouse and your children,” he says. “The other interest is testamentary autonomy.”

Testamentary autonomy means being able to decide what happens to your own estate. The test really is whether you (the deceased) have made an equitable provision for yourself and your children, even your adult ones. If that provision hasn’t been made, then the B.C. court makes that decision.

All children in British Columbia have the right to bring a claim, says Zaitsoff, whether they are minors, disabled or independent adults.

In Ontario, adult children can’t just be angry

It’s not that simple in Ontario, says Sherif Rizk, a family law practitioner at Rizk Law Office in Ottawa. Assuming that the deceased was of sound mind, he says, and that the will was witnessed and signed properly and there are no accusations of signature forgery, there has to be a better reason than an adult child objecting to the amount siblings received compared to them.

“The beneficiary who’s challenging the will has to have some sort of a dependent claim on the person,” he says. That dependency claim could mean an adult child may have been relying on the deceased to provide for them.

An example would be an adult child who wasn’t working so that he or she could take care of the now-deceased full-time, especially if this was over a long period. “If this person has been out of the work force for some time, and that was on the assumption that when mom or dad passed away they will be able to still continue to live because they’ve promised them a certain part of their estate,” says Rizk.

Costs for a case can mount

The cost of instigating a claim, which varies based on the lawyer, can become expensive, says Zaitsoff. He estimates that a person could spend more than $100,000 taking such a case to court. It makes sense, then, to be sure there’s enough at issue to make the risk worth it.

The claimant might also have to open up about his or her personal life as part of the process, says Rizk. That might mean demonstrating to the court the level of involvement in the deceased’s life.

“We do have to get into those nitty-gritty details sometimes, because to the court when it’s faced with a will challenge application, it is being asked essentially to either set aside some or all of the deceased’s will and to perhaps even read into certain vague terms that might have been placed in there, whether intentionally or accidentally. And that’s a big ask.”

As a result, the court has to be sure that there’s a big discrepancy between what’s in the will and the reality of the situation.

Add in the emotions raised and that can be traumatic, says Zaitsoff. “It can be like a family law claim where you are looking back on your relationship,” he says. “It has kids feeling like they weren’t the favourite with mom and dad.”

You can disinherit beneficiaries

In B.C., children can be disinherited if they stole from their parents. However, in an ordinary will challenge, they will usually receive something.

In Ontario, a testator – the person writing the will – can disinherit a beneficiary for similar reasons. The person might think about it and “ultimately decide that how they want to leave their legacy is to leave a particular son or daughter out of their will, and it is possible under testamentary freedom,” says Rizk.

Canadian courts, in general, do not consider sex, gender or religious beliefs to be valid reasons for disinheritance. Ultimately, it depends on in which province the case is brought and the strength of the case. British Columbia and Alberta tend to be more favourable to will challenges.

“If someone has $100,000 and gives it all to their spouse, and nothing to their adult independent children, that would probably be understandable,” says Zaitsoff. “But if they have $20 million, then it’s less excusable to not give anything to your kid.”

More from Canadian Family Offices:

• London a hotspot for expats, but watch those quirky property speed-bumps
• Shareholders-in-waiting need to know things, even if they ruffle family feathers
• The challenge when you become rich: Stay ‘normal’
• What HNW investors and homeowners are doing with real estate in 2023

Please visit here to see information about our standards of journalistic excellence.