BC Estate Litigation – “Stepped Out”
BC Wills & Estate Planning for Stepchildren & Stepparents
It is a well-known fact that a large percentage of relationships in Canada eventually breakdown. Despite the difficulties and challenges that divorce places on a family, a positive circumstance that can arise is the subsequent creation of new blended families featuring step children, or bonus children.
The Significant Role Stepparents Have
As blended families become increasingly more common, whether as a result of a relationship breakdown or the death of a biological parent, some Canadian legislation does not recognize the meaningful and significant role that step parents have in the lives of their step children. A key example of this is in the case of the new Wills Estate and Succession Act (WESA) which limits the rights to vary a will to natural and adopted children as well as spouses.
Section 60 of WESA states the following:
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.
What this means is that if a child has not been legally adopted by their step parent, they will have no recourse under WESA to apply for a variation of the will.
Adopted Children Left Out of the Will
This is particularly troubling when children have been raised by their step parents but can find themselves left out of any estate distribution that comes as a result of a wills variation application. It is possible to imagine a situation where a biological child with no relationship to their biological parent benefits from a wills variation application while the step child, who may have cared for their step parent during a serious illness prior to death is left out of the estate. The legislation provides no recourse for the step child even though they may have played a much larger role in caring for the testator.
Wills & Estate Planning Lawyers
It is critical that testators consider specifically including their step children when making estate plans to ensure that no step child is disinherited and left with no legal recourse.