Can a Child or Spouse Challenge a Deceased’s Will?

Losing a loved one is an incredibly difficult experience. This challenging time is made more difficult when the surviving family feels that they have been left out or unjustly accounted for in the deceased's Will. According to the law in British Columbia, children or spouses of a deceased individual can challenge the Will, providing they meet several conditions.

If the surviving family feels disinherited, meaning that they were either excluded from the Will or not adequately compensated, the law provides that the family can challenge the Will.  By challenging the Will, the court can substitute provisions in the Will for an adequate distribution of assets that is just and equitable - given the circumstances. The circumstances of this happening to a Will depends on the means and needs of the parties involved. The court will take into account what assets the parties already have, the size of the estate, and the listed beneficiaries.

There are a few things to keep in mind in a situation like this. Only children and spouses can apply to challenge a Will. The children must be either biological, legally adopted, or bound through marriage as step-children. This rule applies, regardless of how close the children may have been with the Will maker. When it comes to the spouse, they can be common-law or legally married. In the situation of common-law spouses, they must have lived with the Will maker for at least two years and not have separated before the Will maker's death.

Updating your Will regularly is the best way to prevent any unforeseen issues or unfair distribution of assets in one's Will. Consulting family members and having important conversations with your loved ones is the best way to make sure that they have a Will in place. This will not only make it easier down the road, but it will help to ensure that their belongings are distributed as they wish in the unfortunate circumstance of their passing. Although it is a morbid subject that many of us would prefer to ignore, talking about, and configuring your Will while in good health is the best choice for you and your family. Speak to a Lawyer to review your Will today!


Gene Fraser is an associate at CBM Lawyers. With more than 25 years of valuable experience, Gene specializes in Estate Litigation, Wills, and Trusts. If you are in need of excellent representation or knowledgeable legal advice, speak to Gene today!