Kushner Law Group

Inheritance and Intestate Entitlements for Children for the Deceased

Vancouver estate lawyers discuss how intestacy works when a child is purposely excluded from a will


Vancouver, BC -- (ReleaseWire) -- 04/23/2018 --As estate lawyers, the team members at Kushner Law know there can be many challenges raised by competing family members who want a share of an estate. A valid will means only limited people can issue a challenge. A new blog looks at intestate entitlement when someone has been purposely excluded.

For more, go to: http://www.kushnerlaw.ca/blog-estate-litigation-intestate-entitlements-for-children-of-the-deceased-part-1/

In the case of an intestacy (no will), the Wills Estates and Succession Act sets out the framework for distribution. However, in a recent decision from the British Columbia Supreme Court, the Mr. Justice Affleck was asked to consider an issue relating to a partial intestacy and a descendant who had been intentionally excluded from a will.

In the recent decision of Atrill Estate, 2018 BCSC 350, the Court was asked to consider the following issue:

[5] The question that arises on this application is "who is entitled to inherit the residue of the estate of the late Mr. Atrill?" That question arises because the late Mr. Atrill left the residue of his estate to his wife who predeceased him and he named no alternative beneficiary and he expressly left his son Ian James out of his Will.

An additional complication in this matter is that the intentionally excluded son, Ian James, had predeceased the Testator and fathered three children, one of whom was adopted out of the family.

With respect to the intentional exclusion of one son, the Court determined that as a result of the intestacy, the intentionally excluded son would still have an entitlement to a share:

The residue of the Atrill Estate must be distributed according to the "statutory Will" found in the intestate succession provisions of WESA. Consequently, I am not able to accept the submission of the respondent that the intention of the late Mr. Atrill to exclude Ian James from a share in the residue of his estate prevails over the provisions of WESA.

The respondent is clearly a descendant within the meaning of WESA and for the purposes of sharing in the residue of the late Mr. Atrill's estate, but the question arises as to who are the other descendants of the late Ian James.

In this case, the court accepted that Ian James was entitled to a share of the estate. However, the question is what are the entitlements of his descendants, specifically the child adopted out.

The conclusion will be discussed in a subsequent blog that will be posted on the company website.

For questions about intestate succession, will variation or estate litigation in Vancouver BC, contact the Kushner Law Group at 604-629-0432 or online to schedule a consultation.

About The Kushner Law Group
The Kushner Law Group was founded on the principle that a small law firm should be able to offer the same level of legal advice as a big firm at an affordable cost. A unique combination of legal experience and creativity allows the professionals at Kushner to come up with creative and practical solutions for a variety of legal problems.

For additional information, please visit http://kushnerlaw.ca/ or call 604-629-0432.

Kushner Law Group
Lars Kushner
Phone 604-629-0432 Fax 604-689-4451
Company website: http://kushnerlaw.ca/
1008 Beach Ave #105