Under the Succession Act, a person may waive their right to bring a family provision claim against a deceased person's estate. However, any such waiver will only be legally binding if the Court approves it.

A person who would otherwise be eligible to claim family provision may enter into an agreement that provides that they waive their right to make a family provision claim. Agreements of this nature are often made in the context of divorce settlements, pre-nuptial agreements or agreements between a child and parent.

However, it is important to note that an agreement to waive or release your rights to claim family provision will only be binding if the Court approves it under section 95 of the Succession Act.

Court Approval

The Court may make an order approving a release of rights upon application. Proceedings for approval can be commenced either before or after the death of the person whose estate would be subject to the family provision application.

Court approval is discretionary, not automatic, and the Court will have regard to the relevant circumstances of the case in determining whether or not they approve the release.

Revoking Approval

A Court may revoke approval of a release if either the release itself or the Court's approval was obtained by fraud or undue influence. Approval may also be revoked if all the parties agree to revoke the release.

Relevant Considerations

In deciding whether or not to approve a release of rights, the Court is required to have regard to all the circumstances of the case. In particular:

  1. Whether at the time the agreement was made, the release was advantageous to the releasing party.
  2. Whether, at that time, it was prudent for the releasing party to make the release.
  3. Whether the provisions of the agreement were fair and reasonable at the time the agreement was made.
  4. Whether the releasing party received independent legal advice in relation to the agreement and whether they gave due consideration to that advice.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.