Difference between revisions of "Wills Variation Claims (16:VII)"
Jump to navigation
Jump to search
Desy Wahyuni (talk | contribs) m |
|||
| Line 3: | Line 3: | ||
== A. Application Under the Act == | == A. Application Under the Act == | ||
WESA gives the court the power to vary a will. '''Only the spouse of the will-maker or the will-maker’s children can commence an action to vary a will.''' However, it should be noted that in the situation of a common law spouses, one spouse can unilaterally terminate a relationship and thereby remove the will from the variation provisions in WESA. On the other hand, for married spouses, the spousal relationship can only be terminated by divorce. Please see [[Introduction to Family Law (3:I) |Chapter Three: Family Law]] for more information regarding divorces. The '''limitation period''' for commencing an action to vary a will is '''180 days''' from the grant of probate, per | ''WESA'' gives the court the power to vary a will. '''Only the spouse of the will-maker or the will-maker’s children can commence an action to vary a will.''' However, it should be noted that in the situation of a common law spouses, one spouse can unilaterally terminate a relationship and thereby remove the will from the variation provisions in ''WESA''. On the other hand, for married spouses, the spousal relationship can only be terminated by divorce. Please see [[Introduction to Family Law (3:I) |Chapter Three: Family Law]] for more information regarding divorces. The '''limitation period''' for commencing an action to vary a will is '''180 days''' from the grant of probate, per section 61(1)(a) of ''WESA''. | ||
A wills variation action is commenced by a claim that the will-maker failed to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children” (WESA, s 60). | A wills variation action is commenced by a claim that the will-maker failed to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children” (''WESA'', s 60). | ||
When determining what constitutes adequate provision in a will, courts have considered the following: | When determining what constitutes adequate provision in a will, courts have considered the following: | ||
| Line 31: | Line 31: | ||
*Competing claimant and other beneficiaries" | *Competing claimant and other beneficiaries" | ||
As the court notes in Dunsdon, | As the court notes in Dunsdon, “[t]he concept of adequate provisions is a flexible notion and is highly dependent upon the individual circumstances of the case. The adequacy of a provision is measured by asking whether a testator has acted as a judicious parent or spouse, using an objective standard informed by current legal and moral norms. The considerations to be weighed in determining whether a testator has made adequate provisions are also relevant to the determination of what would constitute adequate, just and equitable provisions in the particular circumstances.” | ||
Where the size of the estate allows, surviving spouses and children are entitled to an equitable share under WESA '''even in the absence of need'''. | Where the size of the estate allows, surviving spouses and children are entitled to an equitable share under ''WESA'', '''even in the absence of need'''. | ||
The court may consider the applicant’s character or conduct, and variation may be refused on this basis (WESA, s 63(b)). If the estate is large and the spouse or children were not mentioned in the will, or they think they were inadequately or unfairly provided for, they should consult a lawyer. LSLAP cannot assist clients with wills variation claims. | The court may consider the applicant’s character or conduct, and variation may be refused on this basis (''WESA'', s 63(b)). If the estate is large and the spouse or children were not mentioned in the will, or they think they were inadequately or unfairly provided for, they should consult a lawyer. LSLAP cannot assist clients with wills variation claims. | ||
:'''NOTE:''' In a decision of the BC Supreme Court, ''Ward v Ward Estate'', 2006 BCSC 448, it was held that a marriage agreement that purported to bar claims under the ''Wills Variation Act'' was not determinative of the issue. | :'''NOTE:''' In a decision of the BC Supreme Court, ''Ward v Ward Estate'', 2006 BCSC 448, it was held that a marriage agreement that purported to bar claims under the ''Wills Variation Act'' was not determinative of the issue. | ||