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Disinherited Children Are Fighting Back: The Rise in Wills Variation Claims

Disinherited Children Are Fighting Back The Rise in Wills Variation Claims

Table of Contents

A Shifting Landscape: Wills No Longer Final Words

In Canada’s evolving estate law terrain, the 30-year-old stereotype of testators wielding absolute control over their legacy is fraying. Increasingly, adult children, across provinces and particularly in jurisdictions where there are will-variation statutes, are challenging unfair or unexpected omissions. These problems point to the changing meanings of the laws, increased demands of intergenerational fairness and the readiness of judges to challenge testamentary unjustness.

The Supreme Court of Canada in Tataryn clarified that the Wills Variation Act must be applied:

“in light of modern values and expectations” and courts “are not necessarily bound by the views and awards made in earlier times”  (cwilson.com)

1. The Legal Foundation: WESA & Tataryn

The Supreme Court of Canada in Tataryn rejected rigid need-based frameworks and emphasized moral obligation, stating bequests must be “adequate, just and equitable” in context. In BC, this mandate became codified in Part 4 of the Wills, Estates and Succession Act, which empowers courts to revise wills meeting these criteria.

Provinces like Ontario and Saskatchewan contain similar dependants’ relief statutes, enabling adult children–and in some cases stepparents or common-law partners—to assert legally protected rights over disproportionate or exclusionary distributions. 

2. Recent Case Trends

There have been numerous high-profile cases:

  •  
  • Lam v Law Estate (2024) held a mother’s will unfairly favored a son due to gender bias; the court increased her daughter’s share to correct the imbalance..
  • In Grewal v Litt (2019), cultural traditions were considered but ultimately not accepted as justification for unequal distribution; instead, an adjusted allocation of 60% to daughters and 40% to sons ensured equity.

Courts are becoming less inclined to admit so-called stereotype-based motives, and this is due to the emphasis on an individual examination of the case and consideration of existing standards in society. 

3. Disclosure and Transparency: The Courts Probing Deeper

A series of recent rulings has made good financial disclosure requirements by civil procedure stronger. In Richter v Richter Estate, Justice Blake clarified that courts may compel production of extensive documentation, including third-party records, to assess adequacy, equity, and a testator’s intent.

Litigation now often involves account books, emails, bank statements, and expert testimony, transforming estates from static transfers into scrutinized legal processes. 

4. Why Variation Claims Are Rising

Recent signals driving this trend include:
  • A. Demographic Shifts All sorts of blended families, second marriages, and complicated family make ups make a fair distribution, not necessarily fair. Adult children of prior marriages are resentful and aggrieved when the bequests do not consider the role of caregiver or compensation in cases of financial need.
  • B. Cultural Awareness Courts no longer infer cultural bias--judgments carefully separate tradition from discriminatory intent, as seen in Grewal. This encourages claimants who believe non-Western heritage led to unequal treatment .
  • C. Increasing Estate Size With median Canadian estates growing, nearly 30 percent of Canadians have no plan, while larger estates create more opportunity for litigation--the perceived unfairness often translates into legal intervention.

5. Trust and Tax: Collateral Considerations

Variation claims can affect trusts and taxation. For instance, executors may need to account for capital gains from “deemed disposition”–including from varied distributions–as per Estate and Income Tax Act requirements .

Graduated rate estates (GREs) receive preferential tax treatment for up to 36 months, but can lose benefits if distributions are varied. Executors must now consider how variation claims may trigger additional tax complexity during probate administration.

6. Data & Figures: Litigation on the Rise

  • Grewal v Litt: The Will originally granted approximately 93.5% of the estate to two sons, leaving the four daughters only about 6% of the value under the will. The court rejected cultural traditions as a sufficient justification for the gross imbalance. (disinherited.com)
  • “In Tom v. Tang, a 2023 BC appeal decision, a mother had left approximately 85% of her estate to two daughters who cared for her in her final years, with just 5% each going to her other three children. The court varied the will for equity--allocating 30% each to the caregiving daughters and 13.33% each to the remaining three children.”

7. Expert Insight: Judges Reveal What Matters

In Cadwell Estate v Martin (2021 BCSC 1089), the court underscored that early documentation of familial financial transactions, rather than leaving them informal, could have prevented years of conflict, emphasizing that “tragic consequences may occur” when terms are not clear or legally documented from the outset.

In Canada’s evolving estate law terrain, the 30-year-old stereotype of testators wielding absolute control over their legacy is fraying. Increasingly, adult children, across provinces and particularly in jurisdictions where there are will-variation statutes, are challenging unfair or unexpected omissions. These problems point to the changing meanings of the laws, increased demands of intergenerational fairness and the readiness of judges to challenge testamentary unjustness.

In Peterson v Welwood (2018), the court held 51% of the estate was adequate–it did not impose equal inheritance nor second-guess reasonable deviations.

These underscore that fairness is contextual, not necessarily equal, while proactive mediation and documentation can prevent future litigation.

8. Proactive Measures for Testators & Executors

  • Draft with transparency Consult adult children and clearly document why unequal bequests exist--align distributions to caregiving roles, financial support, or pre-mortem gifting.
  • Review frequently Update your estate documents promptly after life changes: separation, remarriage, new children, or shifts in family business.
  • Engage professionals early A lawyer-led mediation or estate planning roundtable during estate design provides shared understanding, although it cannot legally bind future court discretion.

9. The Role of Forum Estates LLP

At Forum Estates LLP, we guide families through conflict avoidance and dispute resolution:

  • Assessment: we evaluate risk of variation claims based on demographics and inheritance pattern.
  • Drafting: we include statements of intent, unequal bequests rationales, and communication logs to support fairness in probable court scrutiny.
  • Mediation: we facilitate informal resolution among prospective heirs--often resolving tensions before probate.
  • Litigation: where necessary, we represent executors, children, and spouses through formal variation proceedings--from BC to Ontario and Saskatchewan courts.

10. Conclusion: Equity, Not Uniformity

Wills variation reflects Canada’s evolving legal recognition that testamentary freedom is not absolute. Courts now act as guardians of fairness–filtered through contemporary societal standards. For testators, crafting a defensible estate plan demands transparency, planning, and fairness, rather than blind equality. Executors must not only distribute assets, but also anticipate challenges in document drafting and dialogue among heirs.

As the saying goes, it’s better to plan for mediation now than fight in court later. At Forum Estates LLP, our mission is to transform potential conflict into informed, collaborative legacy planning.

If this insight speaks to your family or future planning, reach out to us at ForumEstates.ca for trusted guidance.

  • References
  • Cadwell Estate v Martin, BCSC 1089 (2021) 1onyxlaw.ca
  • BC Supreme Court, Lam v Law Estate (2024) canadianlawyermag.com
  • BC Supreme Court, Grewal v Litt (2019) bcestatelitigation.ca
  • Supreme Court of Canada, Tataryn v Tataryn Estate (1994) fasken.com
  • BC WESA, Part 4, ss. 60–72 1legacylawyers.com
  • Richter v Richter Estate (practice rules disclosure) cwilson.com
  • Estate litigation figures and trends slaw.ca
  • National estate planning statistics canadianlawyermag.com
  • Capital gains and trust tax impacts onyxlaw.ca