A general principle of law is that a person making a Will (a “Will-Maker”) has the testamentary freedom to dispose of his or her property as he or she wishes. However, like many legal  principles, there are exceptions.

An important exception to a Will-Maker’s freedom to leave what he or she owns to whomever he or she wishes, is the ability in law for certain individuals to bring a wills variation claim against the will-maker’s estate.  Typically, this type of claim arises when there is a disappointed spouse or child who may have been completely disinherited in a will, given a minimal sum, or given a life interest rather than the entire property outright in a will.

In B.C., the Wills, Estates and Succession Act (“WESA”) sets out that a will-maker has a duty to provide for his or her spouse and children.  It states:

“if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”

If the courts believe that the Will-Maker has not made adequate provision for the proper maintenance and support of a spouse or child, it has the discretion to vary the provisions of the Will and make an order that the estate make provision for the spouse or child that is adequate, just and equitable in the circumstances.

The B.C. Courts have interpreted this to mean that there are two sets of criteria that the court should consider when deciding what is “adequate, just and equitable”:

  1. the Will-Maker’s legal obligations, such as his or her obligations to a spouse under family law statutes during the Will-Maker’s lifetime for support and division of property.
  2. the Will-Maker’s moral obligations. Where the Will-Maker has met his or her legal obligations, the Court should consider whether he owed a moral duty to his spouse, or children, beyond the legal obligations the Will-Maker had in life. Moral duties are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.

Only the Will-Maker spouse or children  have standing in law and may apply to the Court to vary a Will-Maker’s  Will.  “Children” include the Will-Maker biological children and legally adopted children. This right does not apply to step-children, ex-spouses or other relatives or friends. Children may apply whether they are minors or adults, dependent or self-sufficient.

A “spouse” is either a person who is married to the Will-Maker or a common-law spouse of the Will-Maker. A “common-law” spouse is one who is living and cohabiting with the Will-Maker in a marriage-like relationship for a period of two years before death. This definition includes same-sex relationships.

The scope of who is considered a child poses challenges for blended families.  If, for example, Jill and Jack marry and each has two children, Jill’s children can challenge her Will as can Jack, and Jack’s children can challenge his Will as can Jill.   However, Jack’s children cannot challenge Jill’s Will and Jill’s children cannot challenge Jack’s Will.   The effect is that blended families must balance legal estate obligations between spouses and children.

For blended families who join their families together, particularly when their children are quite young, it’s common for the spouses to want to leave everything to each other and, alternatively, equally amongst all the children of the family unit because they consider themselves a single family.  Consider how the wills variation issues could impact this:

  •  if the surviving spouse later cuts out the deceased spouse’s children from his/her estate, those children don’t have an immediate tool to recover their ‘portion’ of their parent’s estate who passed first; and
  •  if surviving spouse remarries or enters into a common law relationship, that new spouse will have a claim on the surviving spouse’s estate and the surviving spouse will need to balance this against any intention to provide for all the children of the family unit.

Therefore the complications that wills variations actions may present for blended families are significant.

A disgruntled spouse or child may, within 180 days from the date that the Grant of Probate is issued in British Columbia, bring on an action, pursuant to the Wills, Estates and Succession Act, to vary a deceased’s will.

In determining what would be adequate, just and equitable, the courts will consider a large number of factors, some of which include the Will-Maker intentions and whether or not the reasons for those intentions were rational; the plaintiff’s station in life, the standard of living to which the will-maker has allowed the plaintiff to become accustomed, and the aspirations that are reasonable for persons with that standard of living, the health and mental capacity of any plaintiff applicant, the financial need of the plaintiff, the size of the estate; how the spouse or child cared for the Will-Maker; assistance provided by the Will-Maker to the spouse or child or vice versa; the contribution of the spouse or child to building the Will-Maker estate; what promises, if any, the Will-Maker made to the spouse or child; and any misconduct or estrangement by the spouse or children.

Despite all of this, if  a Will-Maker documents his or her reasons or justifications in his or her will, codicil or supporting documentation for disinheriting or leaving very little to a spouse or child, the court may accept this evidence and may honor the Will-Maker’s intentions.  WESA provides that “the court may accept the evidence it considers proper…” of the will-maker’s reasons for making the dispositions in the will or for not making adequate provision for the spouse or children Such evidence may include statements made by the will-maker during his or her lifetime or a memorandum recording as objectively as possible the will-maker’s reasons for disposing of the estate in a particular way. An advantage of the memorandum, as opposed to expressing the reasons in the will, is that it preserves the confidentiality of the remarks if there is no challenge to the will.  Reasons include estrangement, neglect, poor behavior,  and misconduct.  That said,  the reasons given by the Will-Maker must be based on true facts along with being logically connected to disinheritance to be qualified as “valid and rational” by the Court.

It is important to note that only those assets which actually form part of the Deceased’s estate are subject to wills variation claims. Any assets that flow outside of the estate, for example, life insurance paid to a designated beneficiary third party does not form part of the deceased’s estate and is not subject to a variation action however, these assets  may be considered by the court in ultimately determining what is a fair share of the estate for the various parties if a variation claim is made.

Seeking proper estate planning advice from your trusted professionals can often help a Will-Maker avoid the possibility of a wills variation claim.

The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.

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