Will Challenges Affect All Children, Even Those Not Challenging

BC has some of the most favourable estate laws for children who have been unfairly disinherited by their parents. The courts insist that parents provide ‘adequate provisions for the proper maintenance and support’ of their children unless they have legally valid reasons to not do so. When children believe they’ve been unfairly disinherited, they can challenge the will. Some might be surprised to know that under s.61(4) of the Wills, Estates and Succession Act, the courts will treat any will variation challenge as a proceeding on behalf of all the children, even those not directly involved in the challenge.

Will Challenges on Behalf of All the Children

When one child begins a will challenge, it is likely that all of the children will be impacted. Some children could be left with less inheritance than expected, while others are given more of the estate.

The most common type of will challenge arises when a parent completely disinherits one child, but splits the estate equally amongst their other siblings. The child challenges the will before the courts, who may modify the will to make provision for the disinherited child. The other children are usually opposing the challenge, defending their case. In these instances, the children are usually arguing on their own behalf trying to maximize their inheritance.

In some cases, a child who defends against a will challenge might even benefit from the variation of the will. The case of Graham v. Chalmers (2010) shows how this might happen in BC.

Defending Against Yourself?

In the case of Graham v. Chalmers, the will-writer, Delores, had named her two children, Janet and Sandi, and her two grandchildren as beneficiaries of her will. Delores had a legal obligation to provide an adequate, just and equitable provision to Janet and Sandi, though there was no legal obligation to give an inheritance to her grandchildren. Delores elected to equally distribute the estate amongst the two children and two grandchildren, 25% each. However, Janet found this distribution problematic because both of the grandchildren were Sandi’s children. In essence, 75% of the estate was being given to Sandi’s “side of the family” and 25% to Janet’s.

Janet challenged the will, claiming that she was not given enough of the estate. The courts considered what ‘adequate provision’ means in this scenario, and concluded that the will did not provide adequately for Janet. The will was varied to give Janet and Sandi each 40% of the estate, and the grandchildren 10% each. In this case, Sandi was defending the claim as the executor, however, she ended up benefitting from the successful challenge. Instead of receiving 25% of the estate, she ended up with 40%.

An Example From Case Law

In Bowling Estate (Re) (2022), the BC Supreme Court considered an application from a beneficiary who had sought legal advice when the executor ignored their questions about the estate administration. The deceased had appointed one of her four children as executor, and divided the estate equally among the children. Administration was somewhat delayed, as it took over one year to receive a grant of probate. However, the estate wasn’t complicated as there wasn’t conflict between children regarding their shares, and the estate was mostly liquid.

One year after probate was granted, one of the siblings asked the executor questions about the administration, and was ignored. The executor never answered these questions, or explained why she was ignoring them. The executor began distributing assets from the estate, and her sibling continued to ask questions about the administration. Eventually, the sibling retained a lawyer, hoping to force the executor to answer her questions transparently and provide estate accounts. Both the executor and the sibling claimed costs ranging from $10,000 to $11,500 for their expenses relating to the application and the formal passing of accounts.

The Opinion of the Court

In general, reasonable legal fees related to estate administration are covered by the estate. The judge had to consider if the executor’s conduct was so improper that she should not be able to recover her legal expenses from the estate, and if it was reasonable for the sibling to recover her $11,500 in legal fees for bringing the application. The judge pointed out that there were two other siblings who had chosen not to participate in the application, who had no objections to the administration or the formal accounts. They would be adversely impacted by an order to assign costs to the estate, as it could lower the total value of their respective shares by up to $5000. 

The significant impact of an order for costs upon the other beneficiaries was a key reason for the court’s decision. The judge ordered that the executor could only recover $6000 from the estate, and was liable for the remaining $4000. Finally, the court acknowledged that the sibling had acted reasonably in her concern for the executor’s lack of communication, but pointed out that the conflict could have been resolved outside of court. Because the sibling consented to the formal accounts, the litigation only took place because the sisters couldn’t agree on costs. The court ordered the executor to personally pay $6000 to her sibling in costs.

Ultimately, the executor was personally liable for her unreasonable delay and lack of communication to some degree. However, the court was clear that conflicts of this nature, particularly where are beneficiaries will suffer as a result of the conflict, should be resolved outside of court where possible.

Reminders for Beneficiaries

As a beneficiary, you can still be impacted by a will variation challenge that you are not directly involved in. If other beneficiaries claim they’ve been unfairly disinherited, you should be prepared to lose parts of your inheritance. Any will challenge in BC will proceed on behalf of everyone who may have been unfairly disinherited or unjustly compensated. If you’re unsure how you might be affected by a family member’s will challenge, contact an experienced estate lawyer today.

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