Wills Variation Claims: Evaluating the Claims of Adult Independent Children

A significant portion of Estate Litigation in British Columbia involves cases where adult children have been disinherited from a parent’s will. Section 60 of the Wills, Estates and Succession Act permits adult independent children to ask the Court to vary the Will of their parent if the will maker did not make adequate provision for the child. The legislation uses the terms “adequate, just and equitable in the circumstances” to define the potential scope of a variation. While these terms are quite broad, the Courts in British Columbia have given guidance as to what factors ought to be considered. In Dundson v. Dundson 2012 BCSC 1274, the Honourable Madame Justice Balance summarized the factors that a Court may consider in evaluating the potential size of a claim made by adult independent children:


[134]     In the post-Tataryn era, the following considerations have been accepted as Informing the existence and strength of a testator’s moral duty to independent children:


  • relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
  • size of the estate;
  • contributions by the claimant;
  • reasonably held expectations of the claimant;
  • standard of living of the testator and claimant;
  • gifts and benefits made by the testator outside the will;
  • testator’s reasons for disinheriting
  • financial need and other personal circumstances, including disability, of the claimant;
  • misconduct or poor character of the claimant;
  • competing claimants and other beneficiaries:

Vancouver Estate Litigation Lawyers

If you have been disinherited from a will or are involved in estate litigation, contact the Kushner Law Group today to schedule a consultation.

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