How can a lawyer make a will for a client leaving out a spouse when the law says you have to support a spouse?

A reader recently sent me a note asking about the law when a spouse is left out of a will. How does that happen when our law says you cannot leave out a spouse? Is the lawyer even allowed to make a will like that? Read on to see his question and my comments.

"According to the Alberta Will and Succession Act it states (section 88) a deceased person must leave adequate provisions for the surviving spouse (basically). In my mother (surviving spouse) case, my later father disinherited her in his will. How is this possible when the Alberta Will and Succession act states otherwise? I find it hard to believe that the lawyer who wrote the will to exclude my mother is allowed to do what he did when there was no prenuptial done up. Personally I think the Will and Succession Act is a sham as it does not protect the  living. In my mother's case, all the estate was left to one son."

I sincerely hope that your mother has obtained legal advice - from a lawyer, not from you reading the statute - about this situation. I say this because you have a good grasp of the intent of the law but not how it provides a remedy for those who are left out of a will.

You are right that the WESA says a person must make provision for a spouse in his or  her will. But how does this actually work? How is it enforced? It is not a crime to make a will that doesn't comply with the WESA. The remedy is to sue the estate. The law says that if the deceased does not live up to his or her obligations, the spouse has the right to apply to the court to get a greater share of the estate. Your mother is free to do so. Every province has a similar provision in its laws.

You say that the WESA is a "sham" because it doesn't protect the living. I disagree. In fact it says in black and white that a person who is left out can enforce his or her right to a share of the estate through the courts. What else could it possibly say? What possible sanctions could there be against a person who is deceased other than the right to ask for (and get) the very thing that person tried to avoid giving you? How else could this law "protect the living"?

It seems to me that you're saying the lawyer should not make the will his or her client wants. That the lawyer should sit in moral judgment of what the client wants to do and refuse to work for someone who wants to make a will that in the lawyer's opinion isn't the morally proper will. 

I've said this a million times and will probably say it a million more - lawyers are not judges.

It's not unheard of for a client to want to make a will that leaves out a spouse or someone else important. Our job as lawyers is to explain the law to them carefully and thoroughly so that they understand their will can be challenged if they don't support the person in question. Sometimes they change their minds once they are told about the law, but not always. If they still want to make the will leaving someone out, it's our job to do so. It's not our job only to make wills that we personally approve of.  If we advise a client of what can happen to the will in the future and they want to go ahead anyway, that is their prerogative. They've been told and if their estate loses in the future because they didn't listen, that's their own fault.

I know it's upsetting and frustrating that your mother was left out of the will. Your mother has the right to expect a share of the estate because of the provisions of the WESA. Tell her to see an experienced estate lawyer and to do so without delay, since there is a 6-month limitation after probate of the will.