Unhappy Grandchildren in Wills
Note: This article does not contain legal advice about wills variation claims. If you would like advice on your specific situation, please contact Spraggs Law.
I recently received a call from a potential client. It was an unhappy grandchild feeling inadequately provided for in their grandparent’s will. The potential client was looking for options to contest the will and ultimately increase their share of their grandfather’s estate. The conversation prompted me to revisit wills variation in B.C. from the perspective of unhappy grandchildren.
In this particular case, I was approached by a grandchild of a grandparent who had three children, two of which were surviving at the time of the grandparent’s death. The grandchild who approached me was an offspring of the grandparent’s deceased child. In the grandfather’s will, the vast majority of the estate was divided equally between the two surviving children and only a nominal amount was provided to the grandchild. The grandchild felt that he and his siblings ought to receive from the estate the portion that he believed would have been given to his mother had she been alive at the time of the grandparent’s death. He wanted to know if there was something that could be done to increase his share of his grandfather’s estate.
What options are available to unhappy grandchildren in wills?
First of all, the grandchild had no doubt that the grandparent had testamentary capacity at the time of making their will and that the grandparent’s will accurately reflected the grandparent’s wishes. Assuming that the grandchild was correct, challenging the will on these grounds was not likely going to be a successful option.
Could the grandchild take steps to vary the will? In B.C., spouses and children have standing to ask the court to vary a will under the Wills, Estates and Succession Act, which provides as follows:
Maintenance from estate
60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding 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 will-maker’s estate for the spouse or children.
As highlighted above, while spouses and children have standing in a court proceeding to seek variation of a will to make adequate provision for the spouse or children, there is no express provision allowing grandchildren to vary a will.
What about a proceeding made “on behalf of” the grandchild’s deceased mother? This is expressly permitted under the Wills, Estates and Succession Act which allows proceedings to be made “on behalf of the spouse or children”. The question is whether my potential client’s circumstances allow him to make a claim “on behalf of” his deceased mother.
In B.C., there are examples where proceedings have been brought on behalf of a deceased person who died before or during a proceeding, such as in Currie Estate v. Bowen, 1989 35 BCLR (2d) 46, where a husband died six weeks before his wife. The husband’s will left nothing for his wife. While the couple did not have children together though, they each had children of their own.
The unhappy children of the deceased wife wished to vary the husband’s will to make adequate provision for their deceased mother who was the husband’s spouse at the time of the husband’s death. In rejecting the argument of the husband’s children that the wife could not make a will variation claim after her death, the Supreme Court of British Columbia decided that the wife had a right to claim an equitable share of her husband’s estate and, importantly, this right vested in her at the time of her husband’s death. The wife’s estate was therefore entitled to seek variation of the will.
In Currie Estate, the husband had died before the wife which meant that the surviving wife was entitled to adequate provision in her husband’s will. The Court’s decision in Currie Estate is of no practical assistance to my potential client whose mother had predeceased the grandparent.
This case would have been of assistance to my potential client had his mother been alive at the time of the grandparent’s death which, as a surviving child of the will-maker, would have provided the mother’s estate a right to seek variation of the will.
Competing interests of surviving and deceased children were addressed by the B.C. Supreme Court in Pelletier v. Erb Estate, 2002 BCSC 1158. In this case, a father of four died and left his estate, after payments of debts, to his two sons without any provision to two of his daughters, one of whom died after the father. The deceased daughter was survived by her spouse and children.
The Court noted that the deceased daughter’s entitlement to make a will variation claim survived her death and became vested in her estate. This was of particular importance to the children and spouse of the deceased daughter as any increase in the deceased’s daughter’s estate would increase the value of the estate that could be shared among them.
The Court analyzed the moral and legal obligations of the father and decided that it was adequate, just and equitable in the circumstances to vary the will to provide that the estate, after payment of debts, be divided equally among the three surviving children and the estate of the deceased daughter.
Again, the above example involved a deceased child who had survived their parent. The deceased child’s right to seek variation of the parent’s will vested at the time of the parent’s death and the proceeding could be brought by the deceased child’s estate. Unfortunately for my potential client, his parent did not survive the grandfather which meant that at the time of the grandfather’s death no interest had vested in his mother’s estate that would allow him to vary the will under the BC Wills Estates and Succession Act.
Are there other circumstances where a grandchild can make a claim against an estate? Join us on our blog for future articles where we consider other types of remedies available to unhappy grandchildren like my potential client.
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