We are often asked who a person can leave their estate to in their Wills and whether they can leave it to anyone they choose. The short answer is yes, but, with certain conditions! An overriding principle in wills and estate legislation is testamentary freedom – meaning a person should be free to arrange for the distribution of his or her assets upon their death as they choose. This means you can leave a portion of your estate to anyone, including Aunt Milly, Justin Bieber (although why would you?) or your beloved animal.
However, there are certain limits on this freedom. One such limit is dependent relief legislation which exists in each of the common-law provinces in Canada and other countries around the world. Dependents relief legislation allows dependents to advance a claim against an estate if the deceased failed to make adequate provision for support to dependents through the will. It was originally intended to ensure that dependent spouses and children were not left destitute when the family’s main income earner died without making adequate provision for them.
What this means is that you must leave an adequate portion of your estate to certain individuals.
In B.C. the Wills Variation Act legislation states that:
“Despite any law or statute to the contrary, if a [person] dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the [person]‘s spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the spouse or children.”
This has been interpreted widely by the courts of B.C. to include your spouse AND your financially independent adult children.
In Alberta, the Wills Succession Act legislation allows your spouse, your AIP (adult interdependent partner), minor children or children who are under 22 and are attending full time school to bring a claim to vary the distribution under your Will. In addition, the new legislation allows minor grandchildren or great-grandchildren of the deceased who have lived with the deceased for at least 2 years to bring a claim.
If you have any questions about this, please call one of our team members today to discuss further. We are always happy to chat. And don’t forget Make-A-Will Week in B.C. is from March 31 to April 6 and Touchstone is offering its clients a $50 discount on their Wills from March 15 to April 15.
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250)448-2637
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