Some people may wish to leave money or other assets to individuals or organizations other than relatives in their Wills. These situations may arise when an individual feels a strong calling to leave most or all their assets to a charity, or in cases where family members are not perceived as those in the most need of subject assets.

While, in theory, a testator can dictate the distribution of their assets however they would like, the right to choose how assets are distributed may be limited by dependants’ relief legislation and family law obligations. Dependants’ relief legislation is in place to ensure that dependants who relied on loved ones for support are not unfairly left out of a Will.

Provincial law

In Canada, each province has its own law dealing with dependant relief. The relevant statutes include:

• Ontario –Succession Law Reform Act
• Quebec – Civil Code of Quebec
• British Columbia – Wills, Estates and Succession Act
• Alberta – Wills and Succession Act
• Saskatchewan – Dependants’ Relief Act, 1996
• Manitoba – Dependants Relief Act
• New Brunswick – Provision for Dependants Act
• Nova Scotia – Testators’ Family Maintenance Act
• Newfoundland and Labrador – Family Relief Act
• Prince Edward Island – Dependants of a Deceased Person Relief Act
• Yukon – Dependants Relief Act
• Northwest Territories – Dependants Relief Act

In British Columbia, the courts have wide latitude to vary a deceased’s Will if the court thinks the Will does not adequately provide for the spouse or children of the deceased. In that jurisdiction, is a moral obligation to provide for spouses and children in a Will, even if the children are self-supporting adults.

By contrast, in most other Canadian jurisdictions, an adult other than the deceased’s surviving spouse must demonstrate that they were dependant on the deceased for support in order to bring an action to vary a deceased’s Will (for example, the adult child of a testator). For advice on how to navigate dependants’ relief legislation in your jurisdiction, contact a TEP.

Who are my dependants?

Dependants eligible to challenge a Will typically include spouses and children who depended on the testator for support immediately prior to their death. Depending on the testator’s province of residence, this may include common law partners and stepchildren. A Court can vary the Will plan if it decides that the dependants are put into financial difficulty by the terms of the Will.

Avoiding disputes with your family

If there is any possibility that a Will may be challenged (for example, a controversial position is taken in the Will), a TEP should be consulted for advice on how to avoid expensive and draining litigation.

If you are concerned that family members may challenge a Will, you may wish to consider the following steps:

1. Tell your family why you decided not to leave anything to them.
2. Write a letter to accompany your will explaining your reasons.
3. Get a doctor’s certificate confirming that you were of sound mind when you made the will, to minimize the risk that it can be successfully challenged on the grounds of mental incapacity.
4. Clearly communicate your intentions to your TEP in writing.

For further information, or assistance with drafting a contentious Will, please contact a TEP.