Disinheriting A Spouse

When a lawsuit is commenced on behalf of a spouse, the Court will look at whether or not the Will adequately provides for the spouse

Under WESA, a married spouse or common-law spouse has an excellent opportunity to dispute a Will if the testator has taken steps to try to disinherit his/her spouse or limit the scope of the inheritance.

When a lawsuit is commenced on behalf of a spouse, the Court will look at whether or not the Will adequately provides for the spouse. It is unnecessary for the spouse to show financial need but rather, the Court will look at the legal and moral obligation of the testator to provide for the spouse.

In the notable legal case of Tataryn v. Tataryn Estate (1994) 46 BCAC 255, the Supreme Court of Canada identified two competing interests:

1. The statutory objective of ensuring that adequate, just and equitable provisions are made for the spouse in the Will; and
2. The deceased’s testamentary freedom.

The testator’s testamentary freedom is definitely subordinate to the moral and legal obligations of the testator to the spouse for the simple reason that the spouse must be adequately, justly and equitably provided for in the Will. The Court applies an objective test meaning the Court considers what others in society would do based on societal, legal and moral norms.

There would be few situations where a spouse would be unable to challenge a Will where the spouse did not receive at least half of the estate under the Will.  One exception would be where the spouse received a significant amount of the assets outside of the Will such as through right of survivorship on bank accounts/RRSPs/life insurance plans, through the operation of joint tenancy on real estate and/or through pre-death gifts from the testator.

As a general yardstick, where there are competing interests such as children vs. the spouse, the Court will award a minimum of 50% of the estate passing in and out of probate plus an allowance for the equivalent expected “spousal support”. This is the minimum legal obligation owing by the testator to his spouse as the Court performs a legal assessment as if the testator and the spouse had separated at the time of death and were going through divorce proceedings. Then, the Court will consider the moral obligation owing to the spouse which may increase the award beyond the legal obligation.

In summary, it is very difficult for the testator to disinherit and under-inherit his/her spouse. The spouse, due to legal and moral obligations of the testator, will be preferred over children of the testator.