My Parent Gave More of the Estate to My Sibling: Can I Challenge the Will?

Sometimes, children are surprised when they find out their sibling is inheriting more from their parents, despite their similar relationship. They might it’s unfair and wonder if they can challenge the will and change it, even after their parents’ death. In BC, courts can vary a will that is ruled unfair. To be considered fair, does a will have to give equal provisions to children with the same relationship to the will-writer?

In short, the answer is no. A fair will by law is one that makes “adequate provision for the proper maintenance and support of the will-maker’s spouse or children”. This means that will-writers still have the testamentary freedom to create their will however they wish. The restriction is that they’re not able to unfairly disinherit a spouse or child. If your sibling is receiving more of the estate, there’s usually not much you can do. To have the will varied, claimants must prove the will didn’t provide adequate provision for their life’s maintenance and support.

For the sake of this blog post, let’s look consider an example to help understand the principles of unfair wills. Let’s say a parent elects to give $5,000 of their estate to their son, and $150,000 to their daughter.

When You Can Challenge the Will

Using the above example, with no details of the circumstances it can be difficult to determine if this provision is unfair. The courts must look at external factors and specifics of the case to fully understand the nature of the provisions. If the son chooses to challenge the will, the courts would look at many different factors in determining whether this $5,000 is an adequate provision or not. Some characteristics and factors the courts will take into account include:

• The beneficiary’s living situation,
• The beneficiary’s financial situation and needs,
• The size of the estate, and
• The nature of the estate assets.

Usually, the courts will put a heavy emphasis on the beneficiary’s financial needs. If the son was working a job as a newspaper delivery boy, he could likely prove a financial need in this example and have the will varied. If unfairly disinherited, a child might depend more on government assistance, burdening taxpayers. The child could avoid filing for bankruptcy and social assistance if they inherited a larger estate share. This is the primary function of the disinheritance laws in BC today.

When a Child is Validly Disinherited

There are exceptions to this rule. A valid, rational reason consistent with modern Canadian values must justify a disinheritance in a will, according to the Wills, Estates and Succession Act (WESA). Most circumstances allow estrangement as a valid reason for disinheritance. In the same example, if the son ran away at a young age and never returned, he likely wouldn’t inherit, and the parent could validly disinherit him. If a parent can validly disinherit a child, they can give this child as small an inheritance as they want. In most cases, this would mean leaving nothing to the child in the will. For more information, read our blog on valid reasons for disinheriting a child.

In the end, if one of your siblings received a bit more of an estate than you, there is not a significant chance of successfully challenging the will. You might be able to challenge the will if you believe your inheritance is not adequate or fair due to its extremely different value.

If you believe you’ve been unfairly disinherited by a parent or spouse, contact an experienced estate lawyer today. We will ensure you receive the inheritance that you’re entitled to – whether that means challenging the will or not.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.