A will-maker is free to dispose of his or her assets as he or she sees fit. However, if you have received an unfair share or been disinherited by a parent, you may be able to challenge the Will.

Under the Wills, Estate and Succession Act (“WESA”), a spouse or child of the will-maker may seek to change the Will if he or she feels that the Will does not provide “adequate provisions” for his or her “proper maintenance and support”. If this can be established, the court may order a provision it thinks is adequate, just and equitable in the circumstances, to be made out of the will-maker`s estate.

The question then becomes who is considered a child and a spouse under WESA?

Spouse or Child Qualifications

Definition of a "Spouse"

Whether the claimant qualifies as a spouse will depend on whether the claimant can establish that they have been living in a marriage-like relationship for at least two years, and they have not ceased to be a spouse. This means that separated spouses cannot challenge their former partner’s Will under WESA.

It is important to note that spouses are not considered to have separated if they continue to live together within one year of separation, for the primary purpose of reconciling, and they live together for one or more periods, totaling at least 90 days.

Definition of a "Child"

In contrast, WESA does not contain a definition for a child but case law has established that a natural birth child, an adopted child or a stepchild that has been adopted by the stepparent qualifies as a child.

The following persons do not qualify as children:

1. a stepchild not adopted by the will-maker;
2. a birth child adopted by a third party; and
3. a child for whom the will-maker stood in loco parentis (i.e. in place of a parent) but was not adopted. For example, the child of the will-maker’s common-law partner, who the will-maker did not adopt

Challenging the Will

A proceeding to challenge the Will must be commenced within 180 days from the date the court issues the grant of probate.

This is the date that the court enters the grant in the court registry. If it is not commenced within this period, the right to challenge the Will is usually lost because WESA does not have a provision to extend or suspend this time limit.

However, if there are multiple claimants, one claimant can commence a proceeding on behalf of all who may apply. This means that if one claimant commences an action, the limitation period is eliminated.

Conclusion