A will expresses your intentions for how your assets should be distributed after you die. However, wills can be challenged in court, and judges may vary or overturn provisions if they determine certain family members were not adequately provided for.
One recent example is the Pascuzzi v. Pascuzzi decision from the Supreme Court of British Columbia (June 2022). In that case, a father’s will—drafted more than twenty years before his death—left his estate largely to his wife and provided only a modest life-insurance trust for his daughter. The daughter, then 32, had been allotted a small monthly support payment under a trust set up when she was a child. The court found that the will did not make reasonable provision for the adult daughter’s maintenance and ultimately awarded her 30% of the roughly $1.8‑million estate to balance her needs with the interests of the stepmother.
British Columbia’s Wills Variation Act and other Canadian estate laws
British Columbia’s Wills Variation Act and comparable statutes in provinces such as Alberta, Nova Scotia and Newfoundland and Labrador allow courts to vary wills when they consider that a spouse or child has not received adequate support. Even in jurisdictions without a formal wills variation law, courts sometimes have discretion to alter estate distributions under family or succession statutes.
These laws mean that disinheriting a child or making highly unequal bequests can create legal risk. If a child or spouse believes they have been unfairly treated, they may apply to the court to vary the will, potentially triggering lengthy, emotional and costly litigation. There can also be separate family-law obligations—such as child or spousal support claims or equalization of marital property—that affect how assets are divided.
Leaving assets directly to beneficiaries other than a spouse can also raise tax and entitlement issues that should be considered carefully before finalizing estate planning documents.
Who can contest a will in Canada?
Anyone can technically challenge a will, but in practice it is most often a spouse or one or more children of the deceased who bring an action. Courts look at whether the testator’s will made reasonable provision for the proper maintenance and support of close family members.
“Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s wife, husband or children, the court may, in its discretion, in an action by or on behalf of the wife, husband or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the wife, husband or children.”
Because of this potential for variation, many people look for ways to ensure their intentions are respected while minimizing the estate assets that are subject to a will challenge.
Practical options to reduce the likelihood of a successful variation claim include transferring or arranging assets to pass outside of probate and the will. Common strategies include:
- Gifting while alive. Transfers made during your lifetime remove assets from your estate and therefore reduce what can be challenged after your death.
- Owning property jointly with right of survivorship. Jointly held assets typically pass directly to the surviving owner. If you add a child as a joint owner, document your clear intention to gift the asset—ideally with legal advice and a declaration of trust—to avoid disputes that the child was merely holding the asset on your behalf.
- Using inter‑vivos trusts. Assets placed in a living (inter‑vivos) trust do not form part of your probate estate and can be distributed according to the trust’s terms after your death.
- Naming beneficiaries on registered accounts and insurance policies. RRSPs, RRIFs, TFSAs and life insurance policies usually allow designation of beneficiaries, enabling those funds to transfer directly to named individuals without passing through the will or probate.
Excluding a child from a will
If you plan to exclude a child or to leave unequal shares to your children, properly documenting your reasons can reduce the risk of a successful challenge. Consider including an explanation in your will or preparing a separate letter that outlines your intentions and the factors you considered. Discuss the approach with an experienced estate lawyer who understands the law in your province and can recommend steps to help preserve your wishes.
When one child appears favored—whether by gifts, transfers outside the estate, or the terms of a will—siblings may perceive the result as unfair and could allege undue influence or even elder financial abuse. Clear documentation and legal advice help reduce misunderstandings and strengthen the legal defensibility of your decisions.
What about online wills in Canada?
Online will services offer convenience and lower costs, and many handwritten “holographic” wills are recognized by provincial law. However, when estate plans include disinheritance or unequal distributions, working with a lawyer is often advisable. A lawyer will assess your capacity, ensure your decisions are voluntary and document the process—factors that can be critical if the will is later contested.
Some provinces, like Ontario, give people broad freedom to distribute assets as they wish, but family-law protections remain. For example, Ontario’s Family Law Act allows a surviving spouse to elect between a will benefit and statutory entitlements, typically choosing whichever is more advantageous. A surviving spouse may also be entitled to an equalization payment similar to what they would receive upon divorce, and similar protections apply where someone dies intestate (without a will).
Beneficiaries other than your spouse
If you intend to leave assets to people other than your spouse, consult professionals—ideally an estate lawyer and a financial planner—to avoid unintended tax consequences and legal disputes. Certain assets are more tax-efficient or simpler to leave to a spouse. For example, RRSPs and RRIFs can roll over to a spouse on a tax-deferred basis, and a TFSA can transfer to a surviving spouse without affecting their contribution room.
Complex family situations—such as common‑law relationships or blended families—add layers of legal and financial complexity. Planning ahead with expert advice helps ensure your estate plan reflects your priorities and stands up under scrutiny.
The bottom line: If you plan to disinherit someone, leave an unequal inheritance among children, or leave assets to beneficiaries other than your spouse, seek professional guidance to help make your wishes clear and to reduce the risk that a court will vary your will.
Jason Heath is a fee‑only, advice‑only Certified Financial Planner (CFP) at Objective Financial Partners Inc. in Toronto. He does not sell any financial products.
Read more from Jason Heath:
- What are the taxes on transferring real estate to your kids?
- Capital gains, taxes and more: The implications of inheriting real estate
- What happens to your TFSA when you die?
- How to find a lost life insurance policy