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As long as the will is valid then the Court has to follow it right?

This is a question we often hear from clients and the answer is not necessarily.

While the law gives significant consideration to the intentions of the creator of the will (the “testator”), the Courts have found that testators have competing obligations on a legal and moral basis that must be considered.

Section 88 of the Wills and Succession Act, RSA 2010 cW-12.2 (the “WSA”) sets out that family members can apply to the Court to override a will in order to make adequate maintenance and support by way of an application for family maintenance and support.

Who can apply

The term “family member” is defined in Section 72(b) of the WSA as in respect of a deceased:

  1. A spouse of the deceased,
  2. The adult interdependent partner of the deceased,
  3. A child of the deceased who is under the age of 18 years at the time of the deceased’s death, including a child who is in the womb at that time and is later born alive,
  4. A child of the deceased who is at least 18 years of age at the time of the deceased’s death and unable to earn a livelihood by reason of mental or physical disability,
  5. A child of the deceased who, at the time of the deceased’s death,
    1. Is at least 18 but under 22 years of age, and
    2. Is unable to withdraw from his or her parents’ charge because he or she is a full-time student as determined in accordance with the Family Law Act and its regulations, and
  6. A grandchild or great-grandchild of the deceased
    1. Who is under 18 years of age, and
    2. In respect of who the deceased stood in the place of a parent at the time of the
      deceased’s death.


The Courts consider a variety of factors in determining family maintenance and support claims which are set out at Section 93 of the WSA. These factors are as follows:

  1. The nature and duration of the relationship between the family member and the deceased,
  2. The age and health of the family member,
  3. The family member’s capacity to contribute to his or her own support, including any entitlement to support from another person,
  4. Any legal obligation of the deceased or the deceased’s estate to support any family member,
  5. The deceased’s reasons for making or not making dispositions of property to the family member, including any written statement signed by the deceased in regard to the matter,
  6. Any relevant agreement or waiver made between the deceased and the family member,
  7. The size, nature and distribution of
    1. The deceased’s estate, and
    2. any property or benefit that a family member or other person is entitled to receive by
      reason of the deceased’s death,
  8. any property that the deceased, during life, placed in trust in favour of a person or transferred to a person, whether under an agreement or order or as a gift or otherwise, and
  9. any property or benefit that an individual is entitled to receive under the Family Property Act, the Dower Act and the WSA by reason of the deceased’s death.

The Court will consider the above factors that are designed to provide adequate support for family members while balancing the wishes and intentions of the testator.

A common scenario that we see involve new partners or spouses that have not been accounted for in the will that was executed before the relationship.

If you believe that you have not been adequately provided for in a will you may have a claim for family maintenance and support. Our team at Hayher Lee LLP is happy to assist and answer any questions you may have.