A will maker's LEGAL VS MORAL OBLIGATIONS to his/her spouse and children

A Will can serve many purposes.  Two important reasons of having a will are determining custody of any children under 19 and property distribution.

Every family's dynamic is different.  The fact is, not all families live in harmony.  There are many instances where one would decide to provide little support to or disinherit a certain family member in his or her Will.  In this situation, the Will can potentially be challenged by the deceased person’s spouse or children in a “will’s variation” lawsuit. Under the Wills, Estates, and Succession Act (WESA), the Court can, if it deems appropriate, "vary" the will and increase the amount the spouse or children entitled to, or change the custody of the children.

​There are two types of obligations the Court will consider: legal obligations and moral obligations. Legal obligations are obligations that are enforced by a court of law; and moral obligations are society’s reasonable expectations of what a judicious person would do in certain situations. For moral obligations, it is not necessarily legally bound to fulfill and just dependent on the social expectations. 

The spouse of the deceased can challenge the Will if the deceased person does not provide adequate support to the widow after death.  It is the duty of the Court to determine if the will-maker has fulfilled his or her legal and moral obligations to the widow in the will, and if the Court determines the support provided is inadequate, then the Court will most likely accept the application to vary the will.

In the case of children, a court will look to both the legal and moral obligation of the will-maker to support the children in question. If the child was a minor at the time of passing, legal obligations may resemble those of support obligations under family law. The will-maker has no legal obligation to their adult children.  However, adult children can make a claim using the criteria that failure to provide for them was not just or adequate in the circumstances.

Speak to a notary or a lawyer today.  Having a well thought-out Will made in advance is beneficial and can reduce any conflict within your family.