Wills Variation Claim by Stepchildren

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Wills Variation Claim by Stepchildren

Section 60 of Wills Estate and Succession Act of BC states the following:

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.

To elucidate this further:

A disinherited child, including an adult, and even a financially independent adult, can challenge their parent’s will. A child under this legislation means a natural birth child, an adopted child or a step-child that has been adopted by the step-parent. Disinherited step-children who have not been adopted cannot challenge a will under BC law.

Famous Lawyer Trevor Todd in his blogs at www.disinherited.com has clarified this issue further by giving some famous rulings of the BC Courts:

“The issue of stepchild making a claim for her Father’s estate in 2013 (well before the new WESA came into being) was dealt by the BC Court of Appeal in the case of Hope v. The Raeder Estate (1994), 2 B.C.L.R. (3d) 58 (C.A.)., the BC Court of Appeal held that the word “children” in s. 2 of the Wills Variation Act (WVA) was restricted to natural or adopted children of the testator. The Hope case was followed in the Court of Appeal in Peri v. McCutcheon, 2011 BCCA 401, 22 B.C.L.R. (5th) 48, where the court held that the plaintiff was not a biological child nor adopted by the testator and had, therefore, no standing to pursue a claim under the WVA. In this case Ms. Peri was a stepchild of Mr. McCutcheon and was cared for by Mr. McCutcheon however, she was not adopted by him.

The Peri decision was recently followed in this court in Griese v. Syvret, 2013 BCSC 1601, [2013] B.C.J. No. 1929, where at para. 69 the court stated:

I also note that had the deceased not made the defendant a beneficiary of her estate, he would not be entitled to bring a claim pursuant to the WVA to challenge the Will. This is because the defendant is neither a natural nor an adopted child. An expanded definition of child is not permitted, for example to include foster children: Peri v. McCutcheon, 2011 BCCA 401.”

It is therefore clear and needs no further clarification that stepchildren, unless adopted, do not have standing to contest the will of a stepparent. In a blended family scenario, this clarification can have significant consequences and potential conflicts. Just to make it crystal clear if Samantha and Sam marry and each has two children, Samantha’s children can challenge her will as can Sam, and Sam’s children can challenge his will as can Samantha. However, Sam’s children cannot challenge Samantha’s will and Samantha’s children cannot challenge Sam’s will. The effect is that blended families must balance legal estate obligations between spouses and children.

For blended families who join their families together, particularly when their children are quite young, it’s common for the spouses to want to leave everything to each other and, alternatively, equally amongst all the children of the family unit because they consider themselves a single family. Consider the impact of a scenario where:

  • if the surviving spouse say Sam later cuts out the deceased spouse’s i.e. Samantha’s children from his estate, those children don’t have an immediate tool to recover their ‘portion’ of their parent’s (Samatha) estate who passed first.

  • As a Notary it is prudent to advise the clients when it comes to bequeathing their estate to the stepchildren. It will be wise for the clients to make a specific allocation to their stepchildren, if they so desire. If they do not want to leave anything to their stepchildren who have not been adopted by them, they can opt to remain silent on it in their wishes as this will de-facto disinherit the stepchildren.


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