Stepchildren Challenging a Will: Suing on Promises Broken Under Mutual Wills

In BC, courts can rule a will unfair and vary it if it doesn’t make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. This ensures that individuals can’t disinherit spouses and children without sufficient cause. But what about stepchildren? According to the Wills, Estates and Succession Act (WESA), a child is a natural birth child or a legally adopted child. WESA does not consider a stepchild as a child unless the stepparent legally adopts them.

Stepchildren can’t vary a stepparent’s will under WESA. However, there are ways that stepchildren can challenge a will. These scenarios can arise if:

• Promises are broken under mutual wills;
• Assets in joint tenancy are held in resulting trust; or,
• There is estoppel for an estate being gifted to a stepparent.

Suing on Promises Broken Under Mutual Wills

Spouses create a mutual will to grant the surviving spouse the majority or entirety of their estate. After both spouses pass away, the estate divides among their beneficiaries based on the will’s terms. When stepchildren are part of the equation (from past or future relationships after a spouse’s passing), creating a mutual will becomes crucial. The primary purpose is to provide for a spouse while ensuring fair distribution of the estate to their own children in the future. If one of the spouses in a mutual will agreement passes away, the surviving spouse can’t alter the will. This prevents stepchildren from being unfairly disinherited if their birthparent dies before their step-parent.

An Example From Case Law

A case in White Rock, BC, Wright Estate (Re) 2012, highlights the ability of the courts to give stepchildren the proper inheritance when there is a promise broken under a mutual will. A married couple, both of whom had children from a past marriage, wrote a mutual will together. Neither of them chose to adopt the other’s children. The husband, who was significantly wealthier than his wife, specified that he would provide for his wife for the entirety of her life, give a small portion of the estate to her children, and give the remainder of his estate to his own children. The intention being that his children would be receiving a large majority of his estate.

When the husband passed away, his spouse changed the will, electing to give the estate to her children, and nothing to her stepchildren. This directly contradicted the mutual will that they agreed to while he was alive. The stepchildren sued her for the promise broken under their mutual will. At the end of the summary trial, the judge ruled that this was a broken promise, and the challenge was successful. The children were entitled to the share of the estate that their father had intended.

Reminders for Will Writers

This case makes it clear that stepchildren can successfully challenge a will in BC in some circumstances. When a stepchild’s biological parent creates a mutual will, their parent’s requests and intentions will be respected. If you are a stepchild and you believe a promise was broken under a mutual will, contact an experienced estate lawyer today.

Have a question about estate disputes 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.