Yes, you can leave a child out of your will in British Columbia, but the decision carries more legal risk here than in most other provinces. Under BC’s wills variation rules, a child who has been left out of a will, or left less than their siblings, can ask the court to change the will after the will-maker’s death. Whether that claim succeeds often depends on the will-maker’s reasons and how well those reasons were documented.
Why Excluding a Child Can Be Challenged in BC
In B.C. a will-maker has a moral and a legal obligation to treat their children equally. If one child is left less of an inheritance than his or her siblings it’s important for the will-maker to know that their will may be challenged after their death.
These challenges are made under section 60 of the Wills, Estates and Succession Act (WESA). If the court decides that a will does not make adequate provision for the will-maker’s spouse or children, it can order whatever provision it considers adequate, just and equitable to be paid out of the estate. Most other provinces only allow claims by people who were financially dependent on the will-maker. In BC, adult children who are fully independent can also bring a claim.
When deciding these claims, BC courts consider two kinds of obligations, following the Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate. Legal obligations are the duties the law would have imposed on the will-maker during their lifetime, such as supporting a dependent child. Moral obligations reflect what a reasonable parent would be expected to provide, judged by current community standards. An independent adult child’s claim is usually a moral claim, and those claims can be outweighed by the will-maker’s reasons and the needs of others.
Who can make a claim, and when
A wills variation claim can be brought by the will-maker’s spouse (including a common-law spouse) or children, including adopted children. Stepchildren who were never adopted cannot bring a claim. The claim generally must be started within 180 days after the grant of probate, so a child who intends to challenge the will cannot wait long to decide.
What the Court Looks At
The law does not require a parent to leave every child the same amount. It requires the will to be fair in light of the family’s circumstances. Courts have accepted unequal or excluded gifts where the will-maker’s reasons were valid and rational, and based on facts that were true at the time the will was made. Reasons that courts have considered include:
- A long estrangement, particularly where the child chose to end the relationship.
- Significant gifts or loans to the child during the will-maker’s lifetime.
- One child providing years of care to the will-maker while others did not.
- A large difference in the children’s financial circumstances or needs.
Reasons that rest on a misunderstanding of the facts, or that the court sees as arbitrary, give much less protection. A will can also be challenged on other grounds, such as the will-maker’s capacity to make a will or undue influence by another family member.
Documenting Your Reasons
If such a will is to be made it’s very important for the lawyer to take very careful notes to determine the reason why one child is being excluded and to document the will-maker’s instructions (ideally verbatim).
The will-maker’s reason can also be stated in the will. An example can be found in Spence v. BMO Trust Company 2016 ONCA 196 where Eric Spence wrote in his will:
“I specifically bequeath nothing to my daughter, [Verolin] as she has had no communication with me for several years and has shown no interest in me as her father.”
Even with these types of clauses the will may be successfully challenged and the will itself and/or the lawyer’s notes may become evidence in a trial.
Spence is an Ontario decision, and the Ontario Court of Appeal ultimately upheld Mr. Spence’s will. Ontario does not give independent adult children the right to vary a will simply because it treats them unfairly. In BC, the same clause would be one piece of evidence the court weighs in a wills variation claim, not the end of the matter.
Some will-makers prefer to set out their reasons in a separate signed statement kept with their lawyer instead of in the will itself. A will becomes a public document once it is probated, and a written explanation in the will can be hurtful to read, or can be used to argue that the will-maker’s reasons were mistaken. Your lawyer can help you decide which approach suits your situation.
Other Ways to Plan for an Unequal Estate
Excluding a child entirely is not the only option. Depending on why you want to treat a child differently, one of these approaches may meet your goals with less risk of a dispute:
- Leave a smaller gift instead of nothing. A modest gift shows the child was not forgotten and can make a claim less attractive, especially if the will states that the gift is conditional on the will not being challenged. Courts in BC do not always enforce these conditions, so they are a deterrent rather than a guarantee.
- Use a trust. If your concern is how a child would manage money, for example because of addiction or financial difficulty, a discretionary trust lets a trustee decide when and how the child receives support. For a child with a disability, a Henson trust can provide support without affecting provincial disability benefits.
- Give during your lifetime. Gifts made while you are alive are not part of your estate, so they are not open to a wills variation claim. If you have already helped one child significantly, recording those gifts can also explain an unequal division later.
- Hold assets outside your estate. Assets held in joint tenancy with a right of survivorship, or with a named beneficiary such as a life insurance policy or RRSP, generally pass outside the will. These arrangements have their own legal and tax consequences, and they can be challenged in other ways, so get advice before relying on them.
Stepchildren and Blended Families
Because stepchildren cannot bring a wills variation claim unless they were adopted, the rules are different if you are deciding whether to provide for a spouse’s children. Our article on stepchildren’s inheritance rights in BC explains where they stand, and our guide to estate planning for blended families covers how to balance the interests of a new spouse, your children and your stepchildren.
Frequently Asked Questions
Can my child contest my will if I leave them nothing?
Yes. In BC, any child of the will-maker, including an independent adult child, can apply to vary the will under section 60 of WESA. The court will consider whether the will makes adequate provision for them in all the circumstances, including the will-maker’s reasons.
Do I have to leave my children equal shares?
No. You can divide your estate unequally, but the division should be fair in light of your family’s circumstances, and your reasons should be clear and accurate. Unequal gifts without an explanation are more likely to lead to a claim.
How long does a child have to challenge a will in BC?
A wills variation claim generally must be started within 180 days after the grant of probate. Other kinds of will challenges, such as those based on capacity or undue influence, follow different rules.
Speak With a Wills Lawyer Before You Decide
Leaving a child out of your will is a significant decision, and the way your will is drafted and documented can determine whether it holds up. Deborah Todd Law helps clients in Victoria and across Vancouver Island plan their estates with these risks in mind. Learn more about our wills and estates services, read our guide on how to make a valid will in BC, or contact us to book a consultation.
