Disinheritance – Adult Independent Children

Under the Will Variation Act, a spouse or common-law spouse have an opportunity to dispute a Will.

When a lawsuit is commenced, the court will look at whether or not the Will adequately provides for the spouse. It is unnecessary for the spouse to show financial need but rather, the court looks at the legal and moral obligation of the deceased to provide for the spouse.

In Tataryn v. Tataryn Estate (1994) 2 SCR 807), the Court identified two competing interests:

• The statutory objective of ensuring that adequate, just and equitable provisions are made for the surviving children in the Will;
• The testator’s testamentary freedom.

The testator’s testamentary freedom is subordinate to the moral and legal obligations to ensure that the spouse is adequately, justly and equitably provided for in the Will. As a result, the court will apply an objective test, meaning that it will consider what others in society would do in the same circumstances, based on societal, legal and moral norms.

There are a few situations where a spouse will be unable to challenge a Will, where the spouse did not receive at least half of the estate under the Will. One exception would be where the spouse received a significant amount of the assets outside of the Will.

A general rule that is often followed by the court where there are competing interests such as children vs. the spouse is to provide the spouse with 50% of the entire assets including the assets passing under the Will and the assets passing outside the Will.

If you have questions about disinheritance or contesting a will, our team of estate litigation and will dispute lawyers can guide you through the process. Contact us for a free consultation.