Wills Variation

Disappointed beneficiaries are often caught off guard, and mistakenly believe that there is no recourse. The Wills, Estates and Successions Act (“WESA”) gives children and spouses the right to apply to court to vary the terms of will if they feel that they have been treated unfairly in a process called “wills variation”.

There is no distinction between married and common law spouses under WESA. The definition of children applies to biological and legally adopted children, but does not include stepchildren or a child that has been adopted by another party.

The Court considers the both the testator’s legal and moral obligation when considering claims to vary wills. The test applied in wills variation claims is remarkably subjective, and the power to vary a will is left to the discretion of the Court. WESA indicates that the court may, not must, vary a will that does not, in the Court’s opinion, make adequate provision for the maintenance and support of the deceased’s spouse or children. It is often very difficult to predict what the judge who happens to be hearing your case will think is adequate maintenance and support.

The Court will consider whether the will-maker had a valid and rational reason for disinheriting a child or spouse, or for not treating parties equally. Validity is tested by examining whether the reasons provided for the treatment of the beneficiary being factually true, and rationality is tested by considering a logical connection for the expressed reasons for the disinheritance or unequal treatment and the act.

The principles set out in the 1994 Supreme Court of Canada decision of Tataryn v. Tataryn Estate are consistently applied by the Court. This decision indicates that, while wills may be varied so that a beneficiary will not be left impoverished and become a burden on the state, need will not be the only element considered by the Court. If the size of the estate permits, the court will try to meet all claims. When there are competing claims, claims relying on a testator’s legal obligation will prevail over claims based solely on a moral obligation.

In the recent decision of the British Columbia Supreme Court, Hagen-Bourgeault v. Martens, the deceased left the residue of estate to her spouse, naming her daughter as an alternate beneficiary. No specific bequests or provisions were made for her daughter. While the spouse indicated that he knew that the deceased expected him to provide for her daughter, the will created no obligation to do so.

In varying the will to leave the residue to the testator’s daughter, the Court considered the spouse’s financial independence, the length of their relationship, and the legal elements associated with this, including whether he would have been entitled to spousal support had the parties separated. The size of the estate and the financial needs of her daughter were also significant considerations.

In Brown v. Terins, 2016 BCSC 42, another recent decision of the British Columbia Supreme Court, the Court varied will in favor of the Deceased’s spouse. The parties had executed a cohabitation agreement at the start of their 14 year relationship, and the Deceased’s will made no provision for Ms. Brown, leaving the entire residue to his daughters. The Court found that the parties could not have predicted the rising real estate market and the resulting appreciation of the Deceased’s assets when they entered into the cohabitation agreement, and held that the will did not make adequate, just and equitable provision for Ms. Brown.

These cases highlight the subjectivity of wills variation claims. Each situation will be unique, and will be decided on the particular set of facts. Wills variation claims are time sensitive. If you intend to apply to vary a will, the proceedings must be commenced within 180 days of the grant of probate. Contact the lawyers at Johnston Franklin Bishop today to discuss your options.