Disabled adult child left out of a will: wills variation claims in BC

By Pardeep S. Grewal, lawyer at Lawgical Law Corporation · Reviewed November 12, 2026

Published November 12, 2026

Pardeep S. Grewal is a lawyer at Lawgical Law Corporation, called to the BC bar in 2024, and a member of the Law Society of British Columbia.

Updated November 12, 2026: the Wills, Estates and Succession Act (ss. 60, 61, 64) and the court decisions cited below checked that day.

Parents sometimes leave little to an adult child with a disability, out of worry the money will be misused, a belief that government support is enough, or simple oversight. In BC, that child, or someone acting for them, can ask the court to vary the will under WESA s. 60. BC courts generally hold that a parent owes a moral duty to a disabled adult child, and that this duty isn’t cancelled because the child receives government benefits. Adequacy is judged objectively, not by what the parent believed was enough, and where state support provides only a basic level of living, courts have varied wills in the child’s favour. To protect eligibility for disability benefits, the court can direct that the child’s share be held in a trust. Where the child can’t manage their own affairs, a litigation guardian brings the claim, and the Public Guardian and Trustee must be served.

Lawgical Law Corporation, a probate and estate litigation law firm with offices in Surrey, Abbotsford and Vancouver, BC, acts for adult children with disabilities and their families in wills variation claims; this guide is by Pardeep S. Grewal.

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What BC courts have done

• A daughter born with Down syndrome was awarded more than the will gave her, even though the parent’s reasons for treating her differently were valid and rational, because of her needs (Woods v. Woods Estate, 2002 BCSC 569).
• A small gift to a disabled adult daughter, made because of worries she would be exploited, was varied to a significant share of the residue (Geluch v. Geluch Estate, 2019 BCSC 2203).
• A parent’s moral obligation to a mentally incapable child wasn’t negated by care under a government program (Newstead v. Newstead Estate, 1996 BCSC).
• Adequacy is assessed objectively, and may require the estate to replace state funding for the child’s care (Penty v. Mott, 1984 BCSC).
• A disabled son estranged from his mother his whole adult life still received provision; the court said it would be “unseemly” for a child to be left as a public charge (Bareham v. Petersen, 1999 BCSC).

Government benefits and protective trusts

An outright inheritance can affect eligibility for some disability benefits. The court can vary the will to create a discretionary trust for the child, protecting their entitlement. It won’t impose a trust automatically, though; where the gift already meets the child’s needs, a court has declined to add one without evidence it would help (Damgaard v. Damgaard Estate, 2025 BCSC 208).

Limits

• A claimed disability has to be shown. Where an adult child didn’t establish that her health prevented her from working, the court didn’t vary the will on that basis.
• In some cases, a modest gift was found adequate, for example where the rest of the estate went largely to a surviving spouse.

Who brings the claim

• An adult child who can manage their own affairs brings the claim themselves.
• If the child is incapable, a litigation guardian, often a parent or sibling, brings it on their behalf.
• The Public Guardian and Trustee must be served where a spouse or child is incapable or a minor (WESA s. 61).
• The usual 180-day deadline from the grant applies.

Mistakes I have seen

• Assuming disability benefits mean the child “doesn’t need” an inheritance.
• Taking an outright award that affects benefits, without considering a trust.
• No one stepping forward as litigation guardian until the deadline is close.

Frequently asked questions

My brother receives disability assistance. Will a claim affect it?

An outright gift might. The court can order a trust designed to protect benefits; this is part of planning the claim.

Can I bring the claim for my sister?

If she can’t manage her own affairs, yes, as her litigation guardian.

Does the family need money up front?

No. We take suitable wills variation claims on contingency.

What should I do right now?

Note the grant date, gather medical and benefits information, and decide who could act as litigation guardian if needed.

We take suitable wills variation claims and will challenges on contingency, so you don’t need savings to bring one. See how to pay for a will challenge.

Book a consultation with our estate litigation lawyers in Surrey, Abbotsford or Vancouver. See also wills variation claims.

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Sources

• Wills, Estates and Succession Act (ss. 60, 61, 64), BC Laws
• Woods (Guardian of) v. Woods Estate, 2002 BCSC 569; Geluch v. Geluch Estate, 2019 BCSC 2203; Newstead v. Newstead Estate, 1996 CanLII 564 (BC SC); Penty v. Mott, 1984 CanLII 668 (BC SC); Bareham v. Petersen, 1999 CanLII 1612 (BC SC); S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4; Damgaard v. Damgaard Estate, 2025 BCSC 208; Gould v. Royal Trust Corp. of Canada, 2009 BCSC 1528, as discussed in CLE BC, Estate Disputes in British Columbia: A Litigator’s Guide, §§10.15, 10.17, 10.57, 10.66

This article is general information about BC law, not legal advice for your situation.