Script 179 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

What can you do if you’re disappointed as a beneficiary?
A beneficiary is sometimes unhappy with their share of what they receive under a will. A spouse or child may feel that what they’ve received is less than fair, or they may not receive anything at all. Beneficiaries may also suffer hardship when a person from whom they might inherit dies without a will, because to administer or receive anything from that person’s estate, a beneficiary may have to apply to the court first (which can be costly, time consuming and stressful).

This script explains your rights and remedies in the following circumstances:

• A will appears to be unfair toward a spouse or child.
• The person making the will may not have had the necessary mental capacity to do so.
• There may have been undue influence or coercion on the person making the will.
• The person died without making a will.

Occasionally someone who is a friend or other relative (who isn’t a spouse or child) may be disappointed with what they have or haven’t received under a will. They may have a claim in “unjust enrichment” against the estate. A lawyer will need to be consulted. The remainder of this script just deals with a disappointed spouse or child.

First, is the will unfair?
If the testator (i.e., the person who died) has been unfair or unreasonable toward a spouse or child, the court may change the will, even if the will is technically valid. The Wills Variation Act gives the court the power to change a will that doesn’t adequately provide for the maintenance and support of the deceased person's spouse or children.

Does “spouse” include a common-law spouse?
Yes, “spouse" includes a common-law spouse. But to be considered as a spouse, you must have lived with the testator in a marriage-like relationship for at least two years immediately before the testator’s death. Marriage-like relationships between people of the same sex are included, so a gay or lesbian partner can make a claim as a spouse of the deceased if they lived together in a marriage-like relationship for at least two years just before the testator died.

What does the definition of “children” include?
"Children" entitled to inherit from their parent’s estate includes biological children of any age, born  either within or outside of a marriage, and legally adopted children. But stepchildren, or children who have been adopted by someone else, aren’t entitled to inherit from their parent’s estate.

What does the court consider?
The court considers many things to see if the will adequately provides for the spouse or children, including:

• the value and nature of the assets of the estate (i.e., the money and property owned by the testator)
• the financial circumstances of the applicant (i.e., the spouse or child asking the court to change the will)
• the financial circumstance of the other beneficiaries
• the character and conduct of the applicant towards the deceased person

The court will also consider whether the deceased testator, while alive, looked after the applicant.

How does the court decide to change the will?
After considering the circumstances, the court may decide to change the will. The court will consider what the testator or deceased person should have done. If the will reflects anger or favoritism or without good reason ignores the genuine needs of the testator’s spouse or children, the court will probably change the will to correct the situation. The court has the power to order that the estate provide for the spouse or children in a way that is “adequate, just and equitable” in the circumstances.

Next, consider a testator’s lack of mental capacity
Even where a will appears to meet the technical requirements of the law, a court may change the will if it finds that the deceased person lacked the necessary mental capacity to make a will. A person can be eccentric or suffer from a mental disorder and still be able to make a will. But they must have the capacity to:

• understand that they’re making a will
• understand the effect of the will
• appreciate the amount of the property they’re distributing with the will
• understand and appreciate that their will should, if possible, look after their spouse and children and not unfairly disentitle them

If a court finds that the deceased person lacked capacity with respect to any of these elements when they made their will, then the court may decide the will isn’t valid, which may mean that the deceased has no will

What happens if the person dies without a will?
The Estate Administration Act applies and may provide an inheritance for a child, spouse or other relative of a person who dies without a will. Refer to script 177 on “What Happens When You Die without a Will?”

What happens to the estate if the testator lacked mental capacity?
If the deceased person had no other will, then the situation is the same as if they had never made a will and their estate will be divided according to the Estate Administration Act. If the deceased person has another will, made at an earlier time when they had testamentary capacity, then this earlier will is relied on as a valid will.

What about undue influence or coercion?
Sometimes a will seems so unreasonable that it’s suspicious. While there’s nothing illegal in suggesting to someone that they remember you in their will, the court will take away any gift or inheritance in a will that was made because of undue influence or pressure applied to the person who made the will. Undue influence or pressure can range from persistent persuasion to a threat of violence.

What will the court do if there has been undue influence or coercion?
The court will cancel the will if it finds undue influence or pressure. But undue influence or coercion is difficult to prove, and the burden of proving it is on the person alleging there was undue influence.

You should contact a lawyer
If you have a problem like the ones described here, you should see a lawyer. There are “limitation periods” or deadlines that must be met, which can prevent you from enforcing your right if you delay in acting. For example, if a spouse or child feels that the will doesn’t adequately provide for their maintenance and support, they must start their court action within six months from the date of the grant of probate (i.e., when the will is declared valid).

[updated August 2012]

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