Have You Been Disinherited?

When You Have Been Disinherited: Understanding Your Legal Options in British Columbia

Individuals have broad freedom to decide how their assets are distributed. However, being disinherited can come as a shock, especially when it comes to family. You may have expected to receive something from a parent, spouse, or other close family member, only to discover that their will leaves you little or nothing at all. Alternatively, you may be included in a close family member’s will, but later learn that a key asset was transferred to another individual before the family member’s passing, rendering the will’s provisions largely ineffective.

In British Columbia, however, disinheritance does not always mean the end of the story. The law provides important protections for certain family members and offers legal options that may allow you to challenge a will or seek a fairer outcome.

Understanding your rights is the first step toward deciding what to do next.

What Does It Mean to Be Disinherited?

Disinheritance occurs when a person who might reasonably expect to benefit from a deceased person’s estate is either completely excluded from the will or left with a very small gift. In BC, disputes often arise when spouses or adult children are left out, especially where the will seems unfair or inconsistent with the deceased’s family obligations.

While people generally have the freedom to decide how to distribute their assets, BC law places limits on that freedom to protect close family members from unfair treatment.

Wills and Estate Law in British Columbia

In BC, wills and estates are governed primarily by the Wills, Estates and Succession Act (“WESA”). This legislation sets out the rules for how estates are distributed, how wills can be challenged, and who may bring a claim.

One of the most significant features of BC law is that it allows courts to intervene when a will does not make “adequate provision” for a deceased person’s spouse or children. This makes BC different from many other jurisdictions where adult children have little or no ability to challenge a will.

Rights of Spouses Who Have Been Disinherited

Spouses have strong legal protections in BC. Under WESA, a spouse includes:

• A legally married spouse, or
• A common-law partner who lived in a marriage-like relationship with the deceased for at least two years immediately before death

If you are a spouse who has been disinherited, you may bring a wills variation claim. The court has the power to change the terms of the will to ensure that you receive what is considered “adequate, just, and equitable” in the circumstances.

In deciding whether a will is unfair to a spouse, the court considers factors such as:

• The length and nature of the relationship
• The financial dependence between spouses
• The contributions made during the relationship
• The size of the estate

Rights of Children Who Have Been Disinherited

Children, both minor and adult, also have the right to challenge a will in BC. This is a unique feature of BC law, as many places only protect dependent or minor children. The law also applies to both natural and adopted children.

If you are a child of the deceased and have been disinherited, you may be able to bring a wills variation claim arguing that the deceased failed to meet their moral or legal obligations to you.

Courts consider several factors when assessing a child’s claim, including:

• The nature of the parent-child relationship
• Any estrangement and who was responsible for it
• The child’s financial circumstances and needs
• Contributions made by the child to the deceased
• The reasons the deceased gave (if any) for disinheriting the child

Importantly, parents are allowed to disinherit children, but they must have valid and rational reasons. If a will is silent or the reasons appear unreasonable, courts may intervene to provide a provision for a disinherited child.

Time Limits Matter

If you are considering legal action, timing is critical. In most cases, a wills variation claim must be started within 180 days of the grant of probate or administration. Missing this deadline can mean losing your right to challenge the will altogether.

Because estates can move quickly, it is wise to seek legal advice as soon as you become aware of the disinheritance.

Resulting Trust Claims: Why They Matter in BC Estate Litigation

A resulting trust is a legal concept that can apply when someone transfers property or money to another person during their lifetime, but does not truly intend to give it away as a gift. Even though the asset may be in someone else’s name, the law may treat it as still belonging to the original owner, or, after death, to their estate.

In estate disputes, resulting trusts often come up when a parent or other family member puts a home, bank account, or investment into another person’s name before they die. While this can make it seem like the asset no longer forms part of the estate, a court may decide otherwise if there is no clear evidence that the transfer was meant to be a gift.

This is important because assets held in a resulting trust can be brought back into the estate. Once returned, they may be available to all beneficiaries named in a will, or spouses or children who are making claims that they were treated unfairly under a will. As a result, resulting trusts can significantly change the size of an estate and how it is ultimately divided.

In British Columbia, courts often start with the assumption that transfers to adult children are not gifts unless there is clear proof of a different intention. Because of this, resulting trusts are an important issue to consider whenever assets appear to have been moved out of an estate shortly before someone’s death.

What If There Is No Will?

If someone dies without a valid will (known as dying “intestate”), WESA provides a default scheme for how the estate is distributed. Spouses and children are prioritized, and in many cases, a spouse will receive a significant portion of the estate before children inherit anything.

In these situations, disinheritance is less likely, but disputes can still arise over who qualifies as a spouse or child.

Challenging the Validity of the Will

In addition to wills variation claims, you may be able to challenge the validity of the will itself. This can happen if there are concerns that:

• The deceased lacked mental capacity when the will was made
• The deceased was unduly influenced or pressured
• The will was not properly signed or witnessed

If a will is found to be invalid, an earlier will may take effect, or the estate may be distributed under intestacy rules.

Practical Steps If You’ve Been Disinherited

If you believe you have been unfairly disinherited, consider the following steps:

1. Obtain a copy of the will and probate documents
2. Take note of key dates, such as dates of death, transfers of property, as well as any key deadlines
3. Gather information about your relationship with the deceased
4. Seek advice from a lawyer experienced in BC estate litigation

While the ultimate recourse in BC estate litigation cases is a trial before a Supreme Court Judge, many disputes are resolved through negotiation or mediation, avoiding lengthy and costly court proceedings. When considering whether this option is best, it is important to consider all factors including the timing of a potential mediation. And experienced BC estate litigation lawyer will be able to guide you in the right direction on this front, and line up skilled and trustworthy mediators to assist in resolving the dispute.

Final Thoughts

Being disinherited can feel deeply personal, but it is also a legal issue with clear rights and remedies in British Columbia. The law recognizes that spouses and children often have legitimate expectations and moral claims, even when a will says otherwise.

Understanding your legal options can help you make informed decisions, protect your interests, and pursue a resolution that reflects fairness and justice under BC law.

Anthony Eden is a lawyer at Nixon Wenger that focuses on estate litigation and civil litigation, helping clients navigate complex legal challenges with clarity and strategic focus. His civil litigation practice covers a wide range of disputes.

 

Estate Litigation Lawyer Anthony Eden