Can I challenge the will if my parent’s estate is left to my young step-mother?

Mom and dad were married for 45 years.  Mom died and dad married a woman half his age.  If his will leaves all my parent’s assets to my young step-mother, can I challenge the will?

  • Yes, adult children in BC can apply to the Supreme Court to vary a will made by a parent which does not adequately provide for them.
  • Any property that was held in joint tenancy by spouses at the time of death goes automatically to the surviving spouse and does not form part of the estate.

Competing estate claims between step-parents and surviving children have become quite common in recent years.  If there is a pre-nuptial agreement, then it will likely govern how the estate property is to be divided.  Otherwise, it will be a contest between the young step-mother and the children.

The trend is to favour surviving spouses as there is a legal duty to support a spouse.  However, where the size of the estate permits it, adult independent children may receive a portion of the estate.

In Saugestad v. Saugestad the judge weighed the legal and moral obligations the testator owed to his wife against the moral obligation owed by the testator to his sons from his first marriage.

In assessing the moral claims of the wife, the judge said that cases involving second marriages present unique difficulties in assessing the moral obligations of the testator.  The case involved a second marriage of moderate length (11 years); the testator had children from a previous marriage and much of his estate was accumulated during that first marriage; each party had their own assets and was largely financially independent; and the testator made clear his intention that he wanted his estate to benefit his children, and not his second wife’s heirs.  The judge said that society’s reasonable expectations of what a judicious husband and father would do in such circumstances may vary much more widely than they might in the case of a life-long marriage in which neither party entered the relationship with significant assets. 

In assessing the moral claims of the sons, the testator supported his sons during his lifetime by paying for their educational expenses and providing them with a relatively comfortable upbringing which included a large home in Japan, travel, and the use of properties in Boca Raton and Whistler.  The sons also had a legitimate expectation that they would receive the bulk of the Deceased’s estate.  Thus, they had a strong competing moral claim.  As such, in varying the Will, the moral claims of the wife had to be balanced against the moral claims of the sons.

In that case the wife had come into the marriage with $200,000 in assets.  She gave up her career as a realtor and enjoyed an affluent lifestyle, paid for by the deceased.  The judge varied the will to give her a small amount more than the deceased had, so she ended up with $900,000, or a little under half of the estate.

If you are in this situation in British Columbia, we can help.  Contact us.

Read the case:  Saugestad v. Saugestad