In New Brunswick, you cannot simply write a spouse or dependent child out of your will if they rely on you for financial support. Under the Provision for Dependants Act, if you fail to provide adequate support in your will, a judge at the Court of King’s Bench can override your wishes and redistribute your estate.
When drafting a will, many people believe they have absolute freedom to leave their money and property to whoever they choose. 📜 While you generally have the right to distribute your assets as you see fit, Canadian law heavily restricts your ability to leave your immediate, dependent family members destitute.
If you live in Fredericton, Moncton, or anywhere else in New Brunswick, provincial laws are designed to prevent taxpayers from having to support a surviving spouse or child just because they were cut out of a will. This guide explains how the Provision for Dependants Act works and what happens when an estate plan ignores legal obligations to family members.
Step-by-Step Process in New Brunswick
If a spouse or dependent child is left out of a will, they have a legal mechanism to challenge the estate. 📋 Here is how a dependant generally proceeds to claim their fair share.
Step 1: Determine Eligibility as a Dependant
Not everyone can challenge a will. Under New Brunswick law, a “dependant” is strictly defined. This usually includes a legally married spouse, common-law partners (under specific conditions), minor children, and adult children who are unable to support themselves due to a severe physical or mental disability. Independent, healthy adult children generally cannot use this Act to claim an inheritance.
Step 2: File an Application with the Court
If an eligible dependant is not adequately provided for, they must file a formal application with the Court of King’s Bench. 🏱 This step must be taken rapidly; New Brunswick enforces a strict time limit, typically within four months from the date the grant of probate (or letters of administration) is issued to the executor.
Step 3: Judicial Assessment of the Estate
A judge will review the deceased person’s total assets, debts, and the reasons outlined in the will. The court will look at the dependant’s current financial needs, their age, health, and their customary standard of living. If the judge finds the will did not make “adequate provision for proper maintenance and support,” they have the power to intervene.
Step 4: Redistribution of Assets
If the claim is successful, the judge can order the estate to pay out a lump sum, transfer specific property (like the family home), or create an ongoing trust to support the dependant. 💵 This completely overrides the original instructions left in the will, reducing the inheritances of other named beneficiaries.
How Much Does it Cost in New Brunswick?
Estate litigation is incredibly expensive and drains the very assets the family is fighting over. 💰 This is why proper estate planning with a lawyer is highly encouraged.
- Drafting a Proper Will: Hiring a lawyer in New Brunswick to draft a legally sound will that properly addresses dependant claims costs roughly $400 to $1,000 CAD.
- Filing a Dependant Relief Claim: Retaining an estate litigation lawyer to challenge a will in court typically requires a retainer of $3,000 to $5,000 CAD just to start the process.
- Full Estate Litigation: If the claim goes to a full trial at the Court of King’s Bench, legal fees for both sides can easily exceed $15,000 to $30,000+ CAD. Often, the court orders these costs to be paid out of the estate.
| Preventative Estate Planning | $500 – $1,000 CAD | Minimizes risk of future family litigation. |
| Negotiated Settlement | $3,000 – $8,000 CAD | Parties agree on a fair payout without trial. |
| Full Court Litigation | $15,000+ CAD | A judge forcibly alters the estate distribution. |
How Long Does the Process Take?
The dependant must act very quickly to file their claim. ⌛ The strict limitation period in New Brunswick is usually four months after the court formally grants probate to the executor. If you miss this window, the estate will be distributed, and the money may be unrecoverable.
Once the application is filed, reaching a resolution takes time. If the family settles out of court, it may take 6 to 9 months. If the dispute requires a full trial before a judge, the process can drag on for 1 to 2 years, freezing the estate’s assets during that time.
Frequently Asked Questions (FAQ)
Can I disinherit a healthy adult child in New Brunswick?
Generally, yes. If your adult child is financially independent and does not suffer from a disability that makes them reliant on you, you are usually not legally obligated to leave them an inheritance in New Brunswick.
Does a prenuptial agreement prevent my spouse from challenging the will?
A valid domestic contract (marriage contract) where a spouse waived their rights to your estate holds significant weight. However, a court can still intervene if enforcing the contract leaves the surviving spouse entirely destitute.
What happens if I write a letter explaining why I disinherited them?
A letter explaining your reasoning can be admitted as evidence, but it does not remove your legal obligation to support your dependants. If they genuinely need financial support, the judge will likely override the letter.
Can common-law partners claim dependant relief?
Yes, under New Brunswick law, common-law partners can often claim dependant relief if they lived together continuously in a family relationship for a required period (often three years, or one year if they have a child together) and were dependent on the deceased.
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